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91–183PDF 2004

AFGHANISTAN:

DEMOCRATIZATION AND HUMAN RIGHTS ON THE

EVE OF THE CONSTITUTIONAL LOYA JIRGA

JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON THE MIDDLE EAST 

AND CENTRAL ASIA

AND THE

SUBCOMMITTEE ON 

INTERNATIONAL TERRORISM, NONPROLIFERATION 

AND HUMAN RIGHTS

OF THE

COMMITTEE ON 

INTERNATIONAL RELATIONS 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

NOVEMBER 19, 2003

Serial No. 108–72

Printed for the use of the Committee on International Relations

Available via the World Wide Web: http://www.house.gov/international

( —relations 

(II)

COMMITTEE ON INTERNATIONAL RELATIONS 

HENRY J. HYDE, Illinois, Chairman 

JAMES A. LEACH, Iowa 

DOUG BEREUTER, Nebraska 

CHRISTOPHER H. SMITH, New Jersey, 

Vice Chairman 

DAN BURTON, Indiana 

ELTON GALLEGLY, California 

ILEANA ROS-LEHTINEN, Florida 

CASS BALLENGER, North Carolina 

DANA ROHRABACHER, California 

EDWARD R. ROYCE, California 

PETER T. KING, New York 

STEVE CHABOT, Ohio 

AMO HOUGHTON, New York 

JOHN M. MCHUGH, New York 

THOMAS G. TANCREDO, Colorado 

RON PAUL, Texas 

NICK SMITH, Michigan 

JOSEPH R. PITTS, Pennsylvania 

JEFF FLAKE, Arizona 

JO ANN DAVIS, Virginia 

MARK GREEN, Wisconsin 

JERRY WELLER, Illinois 

MIKE PENCE, Indiana 

THADDEUS G. MCCOTTER, Michigan 

WILLIAM J. JANKLOW, South Dakota 

KATHERINE HARRIS, Florida 

TOM LANTOS, California 

HOWARD L. BERMAN, California 

GARY L. ACKERMAN, New York 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

DONALD M. PAYNE, New Jersey 

ROBERT MENENDEZ, New Jersey 

SHERROD BROWN, Ohio 

BRAD SHERMAN, California 

ROBERT WEXLER, Florida 

ELIOT L. ENGEL, New York 

WILLIAM D. DELAHUNT, Massachusetts 

GREGORY W. MEEKS, New York 

BARBARA LEE, California 

JOSEPH CROWLEY, New York 

JOSEPH M. HOEFFEL, Pennsylvania 

EARL BLUMENAUER, Oregon 

SHELLEY BERKLEY, Nevada 

GRACE F. NAPOLITANO, California 

ADAM B. SCHIFF, California 

DIANE E. WATSON, California 

ADAM SMITH, Washington 

BETTY MCCOLLUM, Minnesota 

CHRIS BELL, Texas 

THOMAS E. MOONEY, SR., Staff Director/General Counsel 

ROBERT R. KING, Democratic Staff Director 

(III)

SUBCOMMITTEE ON THE MIDDLE EAST AND CENTRAL ASIA

ILEANA ROS-LEHTINEN, Florida, Chairwoman 

STEVE CHABOT, Ohio 

JOHN M. MCHUGH, New York 

NICK SMITH, Michigan 

JO ANN DAVIS, Virginia 

MIKE PENCE, Indiana 

THADDEUS G. MCCOTTER, Michigan 

WILLIAM J. JANKLOW, South Dakota 

JOSEPH R. PITTS, Pennsylvania 

KATHERINE HARRIS, Florida 

GARY L. ACKERMAN, New York 

HOWARD L. BERMAN, California 

ELIOT L. ENGEL, New York 

JOSEPH CROWLEY, New York 

JOSEPH M. HOEFFEL, Pennsylvania 

SHELLEY BERKLEY, Nevada 

ADAM B. SCHIFF, California 

CHRIS BELL, Texas 

YLEEM POBLETE, Subcommittee Staff Director 

GREGG RICKMAN, Professional Staff Member 

DAVID ADAMS, Democratic Professional Staff Member 

AMY SERCK, Staff Associate 

SUBCOMMITTEE ON INTERNATIONAL TERRORISM, NONPROLIFERATION

AND HUMAN RIGHTS

ELTON GALLEGLY, California, Chairman 

CHRISTOPHER H. SMITH, New Jersey 

DANA ROHRABACHER, California 

PETER T. KING, New York 

JOSEPH R. PITTS, Pennsylvania 

MARK GREEN, Wisconsin 

CASS BALLENGER, North Carolina 

THOMAS G. TANCREDO, Colorado 

NICK SMITH, Michigan 

MIKE PENCE, Indiana 

BRAD SHERMAN, California 

JOSEPH CROWLEY, New York 

SHELLEY BERKLEY, Nevada 

GRACE NAPOLITANO, California 

ADAM B. SCHIFF, California 

DIANE E. WATSON, California 

CHRIS BELL, Texas 

BETTY MCCOLLUM, Minnesota 

RICHARD MEREU, Subcommittee Staff Director 

RENEE AUSTELL, Subcommittee Professional Staff Member 

DONALD MACDONALD, Democratic Professional Staff Member 

JOSEPH WINDREM, Staff Associate 

(V)

C O N T E N T S 

Page

WITNESSES 

The Honorable Christina B. Rocca, Assistant Secretary, Bureau of South 

Asian Affairs, Department of State .................................................................... 14

The Honorable Lorne W. Craner, Assistant Secretary, Bureau of Democracy, 

Human Rights and Labor, Department of State ............................................... 17

The Honorable John V. Hanford III, Ambassador-at-Large, Office of International Religious Freedom, Department of State ............................................ 22

Barbara Haig, Vice President, Programs, Planning and Evaluation, National 

Endowment for Democracy .................................................................................. 36

Mariam A. Nawabi, Esq., Advisor to the Constitutional Drafting Commission 

of Afghanistan, Associate, Dechert, LLP ............................................................ 42

T. Kumar, Advocacy Director for Asia and Pacific, Amnesty International, 

U.S.A. .................................................................................................................... 54

Mark Schneider, Senior Vice President, International Crisis Group .................. 64

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

The Honorable Ileana Ros-Lehtinen, a Representative in Congress from the 

State of Florida, and Chairwoman, Subcommittee on the Middle East and 

Central Asia: Prepared statement ...................................................................... 5

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California: Prepared statement ...................................................................... 9

The Honorable Christina B. Rocca: Prepared statement ..................................... 16

The Honorable Lorne W. Craner: Prepared statement ........................................ 19

The Honorable John V. Hanford III: Prepared statement ................................... 23

Barbara Haig: Prepared statement ........................................................................ 38

Mariam A. Nawabi, Esq.: Prepared statement ..................................................... 45

T. Kumar: Prepared statement ............................................................................... 56

Mark Schneider: Prepared statement .................................................................... 66

(1)

AFGHANISTAN: DEMOCRATIZATION AND 

HUMAN RIGHTS ON THE EVE OF THE 

CONSTITUTIONAL LOYA JIRGA 

WEDNESDAY, NOVEMBER 19, 2003

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE MIDDLE EAST, 

AND CENTRAL ASIA, 

COMMITTEE ON INTERNATIONAL RELATIONS, 

Washington, DC. 

The Subcommittees met, pursuant to call, at 2:03 p.m. in Room 

2172, Rayburn House Office Building, Hon. Ileana Ros-Lehtinen 

[Chairwoman of the Subcommittee on the Middle East and Central 

Asia] presiding. 

Ms. ROS-LEHTINEN. The Subcommittee will come to order. We 

are very happy to have with us—where is Maurice Shutmargo? Did 

he sneak out? Our former staff director who is now a big shot in 

the Department of Justice, who has joined us here for just a brief 

second. Timing is everything, Maurice. Welcome back. It is a pleasure to see you. 

And Yleem Poblete of our Subcommittee, I am sorry to say, is 

going to be leaving her staff director’s post to join Secretary John 

Bolton, uncovering the weapons of mass destruction singlehandedly over in Iraq, so we wish her much success, but we will 

have more to do with that a little later. 

But thank you so much, Mr. Ackerman, as always, for being 

here. Thank you to all the witnesses. Sorry that just as we were 

about to start we got a series of votes. But what a wonderful day 

of a great Subcommittee hearing, and it is personally gratifying for 

me to be here today to discuss the process of rebuilding democracy 

and building democratic institutions in Afghanistan, and the path 

toward the constitutional Loya Jirga. 

A little over 2 years ago, on October 31st, in my previous capacity as Chair of the Subcommittee on International Operations and 

Human Rights, we held a hearing entitled ‘‘Afghan People vs. the 

Taliban: The Struggle for Freedom Intensifies.’’

Friends and colleagues such as Assistant Secretary Craner, who 

joins us today, and T. Kumar, who will testify today as well, along 

with a cross-section of exiled Afghans, detailed the deplorable conditions of human rights under the Taliban regime, the barbaric 

practice of beatings, of torture, rape, executions carried out by the 

Taliban’s Department of Promotion of Virtue and the Prevention of 

Vice. Yikes, what a title. 

2

The shroud of misery placed on the people of Afghanistan when 

the Taliban captured Kabul in 1996 was removed and, today, Afghans are rebuilding their nation and preparing to usher in a new 

era of representative democracy in their homeland. 

While all is not perfect, the situation has changed dramatically. 

This progress was encapsulated by the International Crisis 

Group in a statement issued on March 14th of this year. 

The ICG statement said:

‘‘The creation of a Ministry of Women’s Affairs, significant 

donor commitment, and the return of women to universities, 

schools and government offices heralded a new day for women 

in Afghanistan.’’

And it continued:

‘‘There is little reason to doubt the commitment of the Karzai 

administration and its international partners to address discrimination against women and improve their access to civic 

life.’’

For many, this commitment is reflected in the draft constitution 

where in article 22 it states:

‘‘Any kind of discrimination and privilege between the citizens 

of Afghanistan are prohibited,’’

and

‘‘The citizens of Afghanistan have equal rights and duties before the law.’’

Articles 44, 83, and 84 of the Constitution mandate the promotion of women’s education and the elimination of a illiteracy, 

while establishing requirements that seek to ensure female representation throughout the government. 

However, women’s rights advocates still have serious concerns 

regarding the rights of female Afghan citizens, as currently stipulated in the draft constitution. 

Masooda Jalal, a former female presidential candidate in 2002, 

was quoted as saying that, after reading the draft document, she 

was not sure whether the constitution was supporting fundamental 

principles or liberalist, but would wait to see what the Loya Jirga 

discussions produced before making a final decision. 

Others focus on the context in which these provisions will be implemented, highlighting that women are often subject to physical 

and psychological harm, which has limited their ability to participate in civil society. 

Just last week, an Afghan Information Agency reported that, in 

two provincial districts, the election of women to the constitutional 

Loya Jirga was suspended, after opposition from Sunni sect religious scholars. This was reportedly confirmed by a member of the 

Constitution Commission of Afghanistan. 

These concerns increase as, according to some, the conservative 

religious tendencies of Afghan society are enshrined in the constitution and could, in its practical application, empower extremist 

elements in the country. 

For example, article 2 of the draft constitution begins by affirming:

3

‘‘Followers of other religions are free to perform their religious 

ceremonies,’’

yet it ends by placing this guarantee,

‘‘. . . within the limits of the provisions of law.’’

This is followed by article 3, which highlights that:

‘‘In Afghanistan, no law can be contrary to the sacred religion 

of Islam and the values of the constitution.’’

So we look forward to hearing from Ambassador Hanford on the 

state of religious freedom in Afghanistan and how these and other 

articles in the constitution are reconciled to provide for and protect 

the fundamental freedoms of conscience and belief. 

Ultimately, as one member of the Constitution Commission has 

said,

‘‘The draft aims to balance modern needs with those of a Muslim-majority nation . . .’’

The Vice President and the head of the Constitution Commission 

during a news briefing following the release of the text, said that 

the draft document aims to unite Afghanistan’s often divided ethnic 

groups and promote the basic human rights so often abused during 

more than 20 years of war. 

The preamble and numerous articles clearly establish the parameters within which the Afghan government will operate, and those 

are according to the Universal Declaration of Human Rights. 

They detail, as in article 24, that:

‘‘Liberty and the dignity of human beings are inviolable,’’

and that:

‘‘The state has the duty to respect and protect the liberty and 

dignity of human beings.’’

The draft document contains prohibitions on torture and inhumane forms of punishment; on crimes against humanity; and on 

forced labor. 

Concurrently, there are articles that protect freedom of expression; freedom of movement; and provide for due process of rights 

such as the presumption of innocence; guaranteed legal representation; protection against arbitrary arrests and detention; protection 

against unlawful search and seizure; and many others. 

With respect to the political process, article 35 articulates the 

right of all Afghans to form political parties, while requiring that 

the organizational structure and financial resources be made public; that its aims and structures not be military or paramilitary in 

nature; and that it has no ties to foreign political parties or foreign 

influences. 

This section seeks to prevent tribalism by prohibiting the formation and functioning of a party based on ethnicity, language, religion or region. 

Some would argue, however, that this article is internally contradictory, given that the formation of political parties is allowed, 

provided that:

4

‘‘The program and charter of the party are not contrary to the 

principles of the sacred religion of Islam.’’

The balance between Afghanistan’s deep-rooted Islamic traditions and its aspirations for democratic rule, between protecting 

fundamental human rights and civil liberties of its citizens and its 

ability to govern, are among the issues that Assistant Secretary 

Craner and our distinguished private panel will effectively address. 

Also, given that article 149 of the draft constitution says that 

amendments to the ‘‘fundamental rights of the people are permitted only in order to make them more effective,’’ we would welcome recommendations from our witnesses on areas they believe 

should be modified or clarified. 

We hope that our witnesses will also address other concerns that 

have been raised by Afghans and other international observers 

alike, such as: 

Does the constitution truly provide equal access to all Afghans, 

regardless of faith, gender, or belief, or ethnic background? 

Will a Loya Jirga of 500 delegates be able to articulate the views 

of millions of Afghans? 

Are the Afghan people adequately prepared and educated on the 

process to make an informed decision on the constitution and their 

future system of government? 

And do they have the necessary resources? 

Looking to the future, and to place it in the broader context, we 

would like Assistant Secretary Rocca to address such matters as: 

What are the long-term ramifications of a democratic Afghanistan, for regional stability and for counter-terrorism efforts? 

How do we see the draft constitution addressing the conditions 

leading to extremism? 

And what about reports about Pakistan’s and Iran’s efforts to use 

their contributions to the reconstruction efforts in Afghanistan to 

influence the process and therefore gain control? 

As President Bush noted at the signing ceremony of the supplemental appropriations bill on November 6th:

‘‘The strategy of our enemies . . . is to intimidate newly free 

men and women who are trying to establish democracy.’’

The Afghan people will not let these elements success. The Afghan people are determined to take steps to ensure Afghanistan’s 

survival as a free nation. We have faith in their determination and 

their commitment to freedom and to their country. 

As President Karzai said in January 2002 at a gathering of Afghans and friends of Afghanistan:

‘‘The Afghan people are tough cookies.’’

Indeed they are, and the United States stands ready to continue 

helping them in their efforts. 

And now I yield to Ranking Member, my good friend Mr. Ackerman of New York. 

[The prepared statement of Ms. Ros-Lehtinen follows:]

5

PREPARED STATEMENT OF THE HONORABLE ILEANA ROS-LEHTINEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA, AND CHAIRWOMAN, SUBCOMMITTEE ON THE MIDDLE EAST AND CENTRAL ASIA

It is personally gratifying for me to be here today to discuss the democratization 

process in Afghanistan and the path toward the Constitutional Loya Jirga. 

A little over two years ago, on October 31st, in my previous capacity as Chair of 

the Subcommittee on International Operations and Human Rights, I held a hearing 

entitled: Afghan People vs. The Taliban: The Struggle for Freedom Intensifies. 

Friends and colleagues such as Assistant Secretary Craner and T. Kumar, who 

will testify today, along with a cross-section of exiled Afghans, detailed the deplorable human rights situation under the Taliban regime, and the barbaric practices 

of beatings, torture, rape, and executions carried out by the Taliban’s Department 

of Promotion of Virtue and the Prevention of Vice. 

The shroud of misery placed on the people of Afghanistan when the Taliban captured Kabul in 1996 was removed and, today, Afghans are rebuilding their nation 

and preparing to usher in a new era of representative democracy in their homeland. 

While all is not perfect, the situation has changed dramatically. 

The progress made was encapsulated by the International Crisis Group in a statement issued on March 14th of this year. 

The ICG statement said: ‘‘The creation of a Ministry of Women’s Affairs, significant donor commitment and the return of women to universities, schools and government offices heralded a new day for women in Afghanistan . . .’’ It continued: 

‘‘There is little reason to doubt the commitment of the Karzai administration and 

its international partners to address discrimination against women and improve 

their access to civic life.’’

For many, this commitment is reflected in the draft constitution where, Article 

22, states: ‘‘Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited,’’ and ‘‘The citizens of Afghanistan have equal rights and duties 

before the law.’’

Articles 44, 83, and 84 of the Constitution, mandate the promotion of women’s 

education and elimination of illiteracy, while establishing requirements that seek to 

ensure female representation throughout the government. 

However, women’s rights advocates still have serious concerns regarding the 

rights of female Afghan citizens, as currently stipulated in the draft Constitution. 

Masooda Jalal, a former female presidential candidate in 2002, was quoted as saying that, after reading the draft document, she was not sure whether the constitution ‘‘was serving fundamentalism or liberalism,’’ but would wait to see what the 

Loya Jirga discussions produce before making a final decision. 

Others focus on the context in which these provisions will be implemented, highlighting that women are often subject to physical and psychological harm, which has 

limited their ability to participate in civil society. 

Just last week, an Afghan Information Agency reported that, in two provincial 

districts, the election of women to the Constitutional Loya Jirga was suspended, 

after opposition from Sunni sect religious scholars. This was reportedly confirmed 

by a member of the Constitution Commission of Afghanistan. 

These concerns increase as, according to some, the conservative religious tendencies of Afghan society are enshrined in the Constitution and could, in its practical application, empower extremist elements in the country. 

For example, Article Two of the draft Constitution begins by affirming that: ‘‘Followers of other religions are free to perform their religious ceremonies,’’ yet it ends 

by placing this guarantee ‘‘. . . within the limits of the provisions of law.’’

This is followed by Article Three, which highlights that: ‘‘In Afghanistan, no law 

can be contrary to the sacred religion of Islam and the values of the Constitution.’’

We look forward to hearing from Ambassador Hanford on the state of religious 

freedom in Afghanistan and how these and other articles in the Constitution are 

reconciled to provide for, and protect, the fundamental freedoms of conscience and 

belief. 

Ultimately, as one member of the Constitution Commission has said, ‘‘the draft 

aims to balance modern needs with those of a Muslim-majority nation . . .’’

The Vice President and head of the Constitution Commission, during a news briefing following the release of the text, said that the draft document aimed to unite 

Afghanistan’s often fractious ethnic groups and promote the basic human rights so 

often abused during 21 years of war. 

The preamble and numerous articles clearly establish the parameters within 

which the Afghan Government will operate, and these are according to the Universal Declaration of Human Rights. 

6

They detail, as in Article 24, that: ‘‘Liberty and dignity of human beings are inviolable’’ and that ‘‘The State has the duty to respect and protect the liberty and dignity

of human beings.’’

The draft document contains prohibitions on torture and inhumane forms of punishment; on crimes against humanity; and on forced labor. 

Concurrently, there are articles that protect freedom of expression; freedom of 

movement; and provide for due process rights such as presumption of innocence; 

guaranteed legal representation; protection against arbitrary arrest and detention; 

protection against unlawful search and seizure; among others. 

With respect to the political process, Article 35 articulates the right of all Afghans 

to form political parties, while requiring that the organizational structure and financial resources be made public; that its aims and structures not be military or paramilitary in nature; and that it have no ties to foreign political parties or influences. 

This section seeks to prevent tribalism and factionalism by prohibiting the ‘‘formation and functioning of a party based on ethnicity, language, religion, and region.’’

Some would argue, however, that this article is internally contradictory, given 

that the formation of political parties is allowed, provided that: ‘‘The program and 

charter of the party are not contrary to the principles of the sacred religion of 

Islam . . .’’

The balance between Afghanistan’s deep-rooted Islamic traditions and its aspirations for democratic rule; between protecting the fundamental human rights and 

civil liberties of its citizens and ability to govern, are among the issues that Assistant Secretary Craner and our distinguished private panel, will effectively address. 

Also, given that Article 149 of the draft Constitution says that amendments to the 

‘‘fundamental rights of the people are permitted only in order to make them more 

effective,’’ we would welcome recommendations from our witnesses on areas they believe should be modified or clarified. 

We hope that our witnesses will also address other concerns that have been raised 

by Afghans and international observers alike, such as:

• Does the Constitution truly provide equal access to all Afghans, regardless of 

gender, faith or belief, or ethnic background?

• Will a Loya Jirga of 500 delegates be able to articulate the views of millions 

of Afghans?

• Are the Afghan people adequately prepared and educated on the process, to 

make an informed decision on the Constitution and their future system of 

government?

• Do they have the necessary resources?

Looking to the future, and to place it in the broader context, we would like Assistant Secretary Rocca to address such matters as:

• What are the long-term ramifications of a democratic Afghanistan, for regional stability and our counter-terrorism efforts?

• How do we see the draft Constitution addressing the precursor conditions 

leading to extremism?

• What about reports about Pakistan’s and Iran’s efforts to use their contributions to the reconstruction effort in Afghanistan to influence the process and 

gain control?

As President Bush noted at the signing ceremony of the Supplemental Appropriations bill on November 6th, ‘‘the strategy of our enemies . . . is to intimidate newly 

free men and women who are trying to establish democracy.’’

The Afghan people will not let these elements succeed. 

The Afghan people are determined to take steps to ensure Afghanistan’s survival 

as a free nation. We have faith in their determination and commitment to freedom 

and to their country. 

As President Karzai said in January 2002 at a gathering of Afghans and friends 

of Afghanistan: ‘‘The Afghan people are ‘tough cookies.’ ’’ Indeed they are, and the U.S. stands ready to continue helping them in their efforts.

Mr. ACKERMAN. I thank the Chairwoman for her leadership as 

well as for scheduling this hearing together with Chairman 

Gallegly. 

The drafting and adoption of a constitution in Afghanistan is the 

next major step for the Bonn Agreement, and given Afghanistan’s 

recent history, a crucial one for both Afghans as well as the interVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
7

national community. But it is also crucial for Afghans to own both 

the substance of the document and the process by which it is drafted and adopted. Ultimately, the constitution must be written by 

and for Afghans. 

The writing of a constitution forces Afghans, or any society for 

that matter, to confront the most basic questions about how people 

want to organize themselves and how they want to relate to their 

government. 

These questions lay bare the most fundamental conflicts faced by 

Afghans: What is the relationship of the central government to the 

local governments? What is the role of Islam in government? How 

are the rights of minorities and women best protected? 

The draft constitution that was released 2 weeks ago answers the 

questions to some degree, and, of course, not to the satisfaction of 

everyone. The proposal attempts to establish a strong presidency 

and does not contain the earlier idea of having a prime minister; 

thus avoiding a replay of the power struggles that characterize Afghan governments in the early and mid nineties, yet there remains 

the danger of concentrating too much power in one individual. 

The role of religion is somewhat more problematic. Articles 1, 2 

and 3 deal with this question, proclaiming Afghanistan as an Islamic republic, establishing Islam as the religion of Afghanistan, 

and thirdly, stating that:

‘‘In Afghanistan, no law may be contrary to the sacred religion 

of Islam.’’

But the question of who gets to decide whether law is contrary 

to Islam is an open and difficult one. 

The role and rights of women in Afghanistan is also an issue 

that requires close attention. Some commentators have described 

the draft constitution as protecting women’s rights implicitly 

through the use of ‘‘gender-neutral’’ language. I think the historic 

treatment of women in Afghanistan indicates that such protections 

are clearly insufficient. 

Last week there were media reports that religious leaders in certain district of Bamyan Province were preventing women from participating in the election process for the constitutional Loya Jirga. 

Clearly, the treatment of women in Afghanistan has not changed 

that much since the removal of the Taliban. 

Because of the nature of these questions, the process by which 

they are answered comes just as important as the answers themselves, and the process is where there is a big problem. 

The incident of denying women the right to vote is but one example. The selection of delegates for the upcoming Loya Jirga is taking place against a backdrop of continued insecurity. 

As the recent U.N. Security Council Mission to Afghanistan 

noted, and I quote:

‘‘Such insecurity also poses a direct challenge to the full implementation of the Bonn Agreement as it constitutes the political 

space necessary for national political processes and blocks access to many areas threatening to disenfranchise parts of the 

population, notably in Pushtin majority areas.’’

8

While the coalition forces have stepped up their efforts against 

the Taliban and al-Qaeda, the insecurity throughout the countryside stems as much from the continued existence of rival warlords 

with their private armies as it does from the resurgence of Taliban 

elements. 

The DDR, or disarmament demobilization and reintegration, difficult tasks in any context, are particularly so in Afghanistan 

where rival commanders continue to fight each other. The DDR efforts have already run into opposition in the Poptia Province from 

Pasha Kahn Zadran. Active United States involvement in DDR is 

going to be required to get recalcitrant warlords to put down their 

guns. 

Madam Chair, Afghanistan has had nine constitutions over the 

last 80 years. It is imperative that the Afghans get this one right. 

Of course, this is but one imperative on a long list when it comes 

to Afghanistan, but only in a secure environment will Afghans be 

able to freely make the difficult decisions that lie ahead of them. 

I thank you, Madam Chair, and I look forward to hearing from 

today’s witnesses. 

Ms. ROS-LEHTINEN. Thank you so much, Mr. Ackerman. 

Mr. Janklow. 

Mr. JANKLOW. Thank you very, very much, Madam Chairwoman, 

for holding this meeting and for your comments. Mr. Ackerman, I 

am going to be extremely brief. 

As I come here today, I am, frankly, enthralled with the concept 

that people are still drafting constitutions. You know, it is not really important that it be modeled after ours. We did not get it right 

the first time either. We have got a lot of great things in our constitution when it was written after the Articles of Confederation 

failed, but things like slavery, things like universal sufferance, 

there were things that we did not have figured out yet either. It 

took us awhile. 

One of the great things about life is that, Sante-Anna once said, 

‘‘A nation that doesn’t know history is fated to repeat it.’’

The Afghans, God willing, should not have that problem. The 

free-flow of ideas, the ability of people to debate their lives and the 

lives of others, the ability of individuals to speak out, the right of 

every human being to worship or not worship according to their 

own desire, the right of people to peaceably assemble, to come talk 

to their government, these are things that we as a world community have figured really are incredibly important to human beings. 

A constitution when it is written will just be words. That is all 

it will be. But what it represents is that fundamental concept of 

ideas and thought around which a society agrees they will comport 

themselves as a people. That is incredibly important. 

You know, as Harry Truman once said, he said:

‘‘My mom always told us that the louder some people publicly 

shout Amen the faster we wanted to count the silverware.’’

There is a lot of philosophy in that, an awful lot of philosophy in 

that. 

When our constitution was written, we created that Bill of Rights 

because of the evils which we perceived we had visited upon us 

from Mother England. We did not like the idea of people coming 

9

into our homes and rummaging around, and staying there, or taking our property and leaving without any writ or permit. 

We did not like the idea of going to debtor’s prisons. We did not 

like the concept that we were not able to speak out and participate 

in our government. 

The Afghan constitution does not have to be like ours, but it is 

incredibly important, and they are headed in the right direction. I 

am not going to criticize any of what they have done. 

I can only say that a constitution for any country that does not 

guarantee absolute fundamental equal rights for all cannot survive. 

A constitution for any country that does not guarantee fundamental rights for all people with respect to all religions at all times 

cannot survive. And a constitution or a society who has as its basic 

laws the failure to recognize that all men and all women, that all 

people of all colors and all persuasions are equal in the eyes of that 

society can truly not survive. 

And so these are—if I was an Afghanistani, this would be an incredibly exciting times for me, because I would have the opportunity to participate in the creation of the fundamental documents 

around which my country can go forward into the future. 

And so, Madam Chairwoman, this is a great hearing you have, 

and it is a great group of panelists that you have brought forward 

here today, and I look forward to the testimony. Thank you. 

Ms. ROS-LEHTINEN. Thank you so much, Mr. Janklow. 

As we know, this is a joint Subcommittee with the Subcommittee 

on International Terrorism, and Human Rights, and Chairman 

Gallegly, who could not be with us, asked that his statement be inserted into the record, and I would ask unanimous consent for that. 

[The prepared statement of Mr. Gallegly follows:]

PREPARED STATEMENT OF THE HONORABLE ELTON GALLEGLY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND CHAIRMAN, SUBCOMMITTEE ON

INTERNATIONAL TERRORISM, NONPROLIFERATION AND HUMAN RIGHTS

I would like to thank Ms. Ros-Lehtinen for taking the lead on today’s hearing on 

the human rights situation in Afghanistan and the process of establishing a workable, democratic constitution in that country. 

Recently, the Afghan government unveiled the draft of a new constitution. There 

is much to support in the document. For example, one provision states that Afghanistan will abide by Universal Declaration on Human Rights and the United Nations 

Charter. It also promises democratic rule, prohibits torture and protects freedom of 

expression and property rights. 

On the other hand, as the witnesses have pointed out in their written statements, 

questions remain as to the implementation of these provisions and whether the 

draft constitution goes far enough in protecting the rights of women and religious 

minorities. 

However, my most immediate concern goes beyond the specific language of the 

draft constitution. In my view, unless the U.S. and its allies improve the security 

situation in Afghanistan, even the best-written, most democratic constitution will 

fail to bring freedom to the Afghan people. 

Almost two years ago, in response to the attacks of September 11, our armed 

forces successfully ousted the Taliban from power. However, there are growing indications that the Taliban is reemerging as a powerful force in the southern and eastern regions of the country. They are being aided by remnants of Al Qaeda that fled 

to Pakistan during the war with the United States. 

Added to this problem is the growing power of warlords and the sharp increase 

in opium cultivation in Afghanistan. The millions of dollars going to the drug traffickers will, in turn, lead to greater violence and undermine the ability of the central government to enforce laws or protect even the most basic human rights. If one 

looks at other countries that have become major sources of illicit drugs, we clearly 

10

see the corrosive effects that narco-trafficking has on public safety, human rights 

and the rule of law. 

I yield back the balance of my time.

Ms. ROS-LEHTINEN. And with that I would like to recognize the 

Ranking Member of that Subcommittee, Mr. Sherman of California. 

Mr. SHERMAN. And flying our Subcommittee flag proudly. 

I want to thank you, Chairwoman Ros-Lehtinen, the absent but 

ever present Chairman Gallegly, Ranking Member Ackerman, for 

holding these hearings. 

It seems that we have put virtually all of our available national 

treasure, our military power, our will, and all of our diplomatic efforts into Iraq, and I am glad that we are holding these hearings 

to remember that the threats to America do not emanate exclusively between the Tigress and Euphrates Rivers. 

And we must remember that right now, as far as we know, not 

one planned or actual terrorist attack against the United States 

emanated from Iraq, whereas Afghanistan was the headquarters of 

al-Qaeda, which, of course, is responsible for September 11th. 

This exposes the fiction behind one of the rationals behind the 

Iraqi mission, which was to ensure that Saddam did not provide a 

safe haven for terrorists. Saddam was not providing a safe haven 

to those terrorists who were actively plotting against America, but 

we do know where there is a safe haven, where there was a safe 

haven to plot September 11th, the East Africa Embassy attacks, 

the USS Cole, and that is Afghanistan, which continues to have 

outside of Kabul plenty of areas that can only be described as safe 

havens for terrorists, and substantial Taliban support. 

We cannot expect a perfect democracy in Afghanistan, but we 

can expect one in which we and the central government have 

enough influence to prevent the emergency of terrorism and to stop 

the cultivation of the opium poppy, and Afghanistan could only 

move forward in terms of its human rights and treatment of 

women. 

I may disagree with the gentleman from South Dakota in terms 

of how high we should aim in this process. I, too, would like to see 

all the things that he mentioned in the Afghan constitution, but 

would settle for quite a bit less. 

Unfortunately, we have in many places in Afghanistan all of the 

safe haven that al-Qaeda needs. We have to do more. We have to 

get the Pakistanis to do more, particularly in the border area. 

To expect this government to exert its authority in eastern and 

southern Afghanistan, with the additional problem of having terrorist and other force moving back and forth over the border into 

Pakistan, is to expect the impossible. 

The lack of security remains perhaps the largest obstacle to not 

only a democratic Afghanistan, but to any economic progress as 

well, and, of course, you have the vicious circle, lack of security 

leads to economic stagnation and decline, which leads to a decline 

of lack of security. 

We ought to take a look at our trade policies. We ought to take 

a look at taking away some of the textile quota assigned to China, 

and assigning it to Afghanistan as well. 

Now, I realize that those quotas will only be with us for a short 

time, but that and other opportunities to shift economic advantage 

11

to the products of Afghanistan, not at the disadvantage of American workers, but to the disadvantage of those who repeatedly run 

enormous trade surpluses with the United States ought to be our 

focus. Unfortunately, I doubt that will occur under this Administration. 

Recent news reports of how the NGOs, the international aid 

groups have curtailed or eliminated their efforts can only bring us 

sorrow. The U.S. High Commissioner for Refugees began pulling 

staff out of southern and eastern regions of the country in response 

to the death of a staff member at the end of militants, terrorists 

if you will. 

If these aid groups are not able to carry out their work, that 

downward spiral that I mentioned would continue. So I hope that 

we can hear from our witnesses how, with so much of America tied 

down in Iraq, we can provide the resources and the strategy to assist the Afghan government in achieving at least the limited aims 

I have outlined. 

And I yield back. 

Ms. ROS-LEHTINEN. Thank you so much, Mr. Sherman. 

Mr. Rohrabacher, California? 

Mr. ROHRABACHER. Thank you very much. 

I think that this hearing is really at a pivotal moment, and there 

has been several pivotal moments in these last 10 years that America has just either missed or just totally screwed up. And the result 

of us and our folly at those moments of decision have cost the 

United States dearly, both in lives and in treasure. 

This is, however, one of those moments again. We have had an 

opportunity which I think is we have not exploited for the benefit, 

but we can turn that around now, I believe, and I hope that optimism is shared by the panel. We need to make sure that whatever 

comes out of this constitution is a positive, is a very positive element of the future of Afghanistan and that region. 

In order for that to happen, we have got to provide leadership. 

We cannot expect the people of Afghanistan who are relatively unsophisticated to have the knowledge base and the expertise to put 

together the type of constitutional government that will secure 

their liberty and prosperity in the future. 

We need to provide leadership. Unfortunately, from what I have 

seen, Madam Chairman, our government is not now providing that 

leadership, and I hope that this panel will tell me that I am wrong 

when I say that. I hope they will show me that I am actually underestimating the type of effort that is being put into Afghanistan 

today. 

We need to have in the constitution a declaration of freedom of 

religion. I will be very interested to see if there is a specific declaration of freedom of religion. We need a specific declaration in the 

constitution that women have equal rights, and that it is spelled 

out, and that it is not ambiguous. We need to make sure that the 

people there have freedom of press 

If we do not have guarantees for the freedom in the constitution, 

and push for that now, we cannot expect Afghanistan to be a free 

country 5 years from now, and 5 years from now Afghanistan will 

continue to be a major threat to the stability of that region and the 

security of the free world. 

12

The other thing, of course, we need to worry about our drugs, 

which this Administration has, again I will hope to hear good 

things about the drug effort, as we keep complaining about it, and 

from my perspective and what I have seen, that drug production 

is out of control in Afghanistan, and it is being used to finance exactly the wrong elements, the worst of all people. 

Hekmaktyar Gubadeen is back in the country. He is allied with 

the Taliban now, which is a catastrophe, that alliance is a catastrophe. 

So, Madam Chairman, I am very interested in hearing this presentation today, and I would hope that these people have some answers for us about the constitution and the leadership for providing 

it. If they do not, they should have explanations of why. 

Thank you very much. 

Ms. ROS-LEHTINEN. Thank you, Mr. Rohrabacher. 

Ms. Harris of Florida. 

Ms. HARRIS. Thank you, Representative Rohrabacher. Thank 

you, Madam Chair. 

I wish also to express my appreciation to our Subcommittee 

Chairs for conducting this hearing on the reconstruction of Afghanistan. I also wish to thank the distinguished members of today’s 

panel. 

As we enter the next stage of the process of the 2001 Bonn 

Agreement, we will encounter a number of landmark challenges including the adoption of the constitution. While the development of 

a stable and enduring democracy cannot be our exclusive focus obviously, we must ensure that Afghanistan also concentrates on securing basic human rights protections, unifying war infractions, 

and preparing the people of Afghanistan for the burdens and responsibilities of self-government in a manner that remains consistent with their cultural history. 

And while I recognize that we are being open and sensitive to 

their cultural historic background, I am very sensitive to that, with 

their orientation toward strong leaders and their tribal background, that we be able to provide something that they will relate 

to, not just a democratic institution, which is foreign. 

And also, in addition, while they can vote, and I believe before 

they had about 1,500 members in their organization, they are 

bringing it down to 500, and it is not their selection, it is the U.N. 

Again, I am concerned about that kind of self-determination from 

those tribes if it is going to be effective. 

And then certainly, finally, with 95 percent of illiteracy, how are 

people really going to be able to govern justly and know who their 

leaders that they are choosing truly are until we really improve 

that? Just the basic needs of food, clothing and shelter, how can 

people begin to think about a republic or a democracy when they 

can barely survive? 

So there are such critical issues in addition to the constitution. 

I am really pleased with the focus on the rights of women. It is 

very exciting that women are not just receiving the guarantee of 

the right to vote, but the assurances regarding the significance of 

their role in government and in society in general. 

Our nation’s interest in Afghanistan has always rested upon the 

development of a viable and independent state that can remain free 

13

from terrorist influence. Nevertheless, persistent violence and a 

slow reconstruction process have combined to undermine the authority of the Karzai provisional government, producing on occasion 

an environment of chaos and instability. 

Obviously, with the opportunity to have that kind of strong man 

monarchy or other type of—prime minister relationship with 

Karzai, I think that could actually help to guarantee even more 

stability if that is what the Afghans so determine. 

But in particular, the absence of sufficient security plagues the 

majority of the country, especially in the regions that remain susceptible to widespread opium cultivation and trafficking as well as 

the influence of the Taliban. 

While I believe that the adoption of a constitution will serve as 

a watershed in the history of this oppressed nation, we must direct 

our energy as well to creating the reality rather than just the appearance of a prosperous free and secure Afghanistan. 

And I look forward to the continued discussion of this vital component of the war on terror. Thank you. 

Ms. ROS-LEHTINEN. Thank you, Ms. Harris. 

And now I am very pleased to introduce our distinguished panel. 

I would like to welcome once again Assistant—well, this time, Assistant Secretary Christian Rocca. Ms. Rocca was sworn in as Assistant Secretary of State for South Asian Affairs on May 31, 2001, 

and prior to this appointment she served as foreign affairs advisor 

to Senator Brambach, specializing in issues related to South Asia 

and Central Asia, and the Middle East. She also served as an intelligence officer with the CIA from 1982 to 1997. We thank you so 

much, Secretary Rocca, for being with us. 

Ms. ROCCA. Thank you. 

Ms. ROS-LEHTINEN. And we want to welcome back an old friend, 

Assistant Secretary Lorne Craner. Mr. Craner was sworn in as Assistant Secretary of State for Democracy, Human Right and Labor 

on June 4, 2001. He coordinates U.S. foreign policy and programs 

that support the promotion and protection of human rights and democracy worldwide. Prior to his appointment, he served as the 

President of the International Republican Institute from 1995 until 

assuming his current position. We welcome you back. 

And also want to welcome Ambassador John Hanford III. Mr. 

Hanford was sworn in as Ambassador-at-Large for International 

Religious Freedom on May 2, 2002. He serves as a principal advisor to the President and the Secretary of State on issues of religious freedom worldwide. From 1987 to 2002, the Ambassador 

served on the staff of Senator Richard Lugar as an expert on international religious freedom. In 1998, Mr. Hanford was instrumental 

in the drafting and guiding of the International Religious Freedom 

Act through Congress, and he is a good friend of our Subcommittee 

as well. 

And as a reminder to our witnesses, opening statements should 

be limited to no more than 5 minutes, and I am sure that we will 

have many questions for the panelists, and your entire statement 

will be made a part of the record. 

Ambassador Rocca, we will begin with you. Thank you. 

14

STATEMENT OF THE HONORABLE CHRISTINA B. ROCCA, ASSISTANT SECRETARY, BUREAU OF SOUTH ASIAN AFFAIRS, 

DEPARTMENT OF STATE 

Ms. ROCCA. Thank you, Madam Chair, Mr. Sherman. Thank you 

very much for giving me the opportunity to come and talk about 

ongoing commitment to success in Afghanistan. 

I am pleased to be able to report to you that progress to date has 

been good, and that it is accelerating. Afghanistan has been making rapid progress in its reconstruction, and the United States has 

been working closely with international organizations, our NATO 

allies, and members of the international community, to help that 

country take its place among the world community of moderate democracies. 

It has been 2 years since the liberation of Kabul and the defeat 

of the Taliban regime. Under the Taliban, 20 percent of the population lived as refugees, and 200,000 had been disabled by mines. 

Roads, irrigation and other infrastructure were barely usable, and 

few Afghans had access to health care and education. 

Today, this is changing. Afghans enjoy restored liberties and opportunities that were unheard of in recent memory. An internationally recognized government is in power. Schools have reopened. A 

new banking law is in place. Businesses are blossoming around the 

country. And most importantly, there is hope for a better future. 

It is also important to point out that challenges remain before us; 

most importantly, the threat to security posed by resurgent Taliban 

and al-Qaeda attacks. These challenges can be overcome with continued support, we are confident, and we remain committed to success in Afghanistan. 

The Congress’s recent approval of $1.7 billion in supplemental 

funds will allow us to build on our successes to date, and help the 

Afghans establish a government that is moderate and democratic, 

stable and at peace with its neighbors, and representative of all the 

Afghan people, and that it will never again be a haven for enemies 

of the United States. 

The supplemental includes $69 million for support to democracy 

and governance. Additional funds will support security sector development that will help train Afghan police and military in the 

run-up to the election. 

On December 5, 2001, various Afghan groups came together 

under U.N. guidance and signed the Bonn Agreement, which you 

are all familiar with. In accordance with that agreement, an emergency Loya Jirga took place in June 2002, electing a transitional 

government, and since then the transitional government has continued to implement the Bonn Agreement. 

In October 2002, President Karzai established a nine-member 

constitutional drafting commission which produced a draft constitution, and in April 2003, a larger constitutional commission of 35 

members began revisions of the draft, and public consultations 

throughout the provinces and among refugee populations. 

Afghanistan will soon mark its next important political milestone. In December, 500 delegates will convene a constitutional 

Loya Jirga to ratify a final constitution. It will represent a broad 

spectrum of Afghan society, including 90 women delegates. For the 

15

first time in almost 40 years the Afghan people will have an opportunity to define the future of their country. 

The draft constitution unveiled on November 3 represents a genuine effort on the part of Afghans to reclaim their rightful place in 

the community of nations. 

The draft constitution establishes a democratically elected government with a system of checks and balances. A President is to 

be elected for a 5-year term, with at least 50 percent of votes nationwide. A single Vice President is announced by each presidential 

candidate before elections, but does not stand for election. 

The legislature resides in a bicameral national assembly. The 

lower house is directly elected for a 5-year term. The number of 

lower house members is proportionate to the population of each region and will range between 220 and 250 members. 

The upper house is elected in three divisions. The provincial 

councils elect one-third of its members for a 4-year term. The district councils elect the second third of members for a 3-year term, 

and the President appoints the remaining third for a 5-year term. 

The draft constitution dictates that at least one woman will be 

elected to the lower house from each of the 32 provinces, and half 

of the President’s appointments to the upper house must be 

women. 

Under the draft constitution, the judicial branch is composed of 

a single supreme court, and two layers of appellate courts. There 

is no provision for a separate constitutional court or religious court. 

The draft also provides for a Loya Jirga, the traditional assembly 

of Afghan leaders, which can be convened for decisions on changes 

to the constitution and other serious issues. 

In addition to provisions on government structure, the draft constitution establishes protections for human rights. It provides for 

basic rights and freedoms, and specifically cites Afghanistan’s obligation to abide by international human rights treaties. 

The draft also recognizes the important role of Islam in Afghanistan, without prohibiting practice of other religions. 

The draft constitution also sets a time line for elections. Presidential elections are to be held first, currently planned for June 

2004, in keeping with the Bonn time line, and legislative elections 

will then be held within 1 year of presidential elections. 

The United Nations Assistance Mission to Afghanistan, UNAMA, 

will begin registration for the elections in December, and UNAMA 

estimates the total cost will be $78.2 million. The United States 

has already contributed $15 million to UNAMA for registration, 

and other donors have contributed $27.2 million thus far. 

Throughout the drafting process, the United States has fulfilled 

its role as a friend to Afghanistan by providing resources and expertise to the drafting commission, and giving counsel to the government of Afghanistan. 

The drafting of the constitution must be an Afghan process. As 

such, it is important to remember that the draft constitution is just 

that, it is a draft, and there will be no final constitution until one 

is approved by the constitutional Loya Jirga. Until then, the U.S. 

will continue to support the constitutional process and offer our 

counsel where appropriate. 

16

Our objective is to bring lasting peace and stability to a country 

that has experienced very little of either in the last quarter century, and I am confident that with your continued support we will 

succeed. 

Thank you. 

[The prepared statement of Ms. Rocca follows:]

PREPARED STATEMENT OF THE HONORABLE CHRISTINA B. ROCCA, ASSISTANT

SECRETARY, BUREAU OF SOUTH ASIAN AFFAIRS, DEPARTMENT OF STATE

Madame Chairman, Mr. Chairman, Mr. Ackerman, Mr. Sherman, distinguished 

members, thank you for inviting me to speak on the United States’ ongoing commitment to success in Afghanistan. 

I am pleased to be able to report to you that progress to date has been good—

and that it is accelerating. Afghanistan has been making rapid progress in its reconstruction, and the United States has been working closely with international organizations, our NATO allies and members of the international community to help that 

country take its place among the world community of moderate democracies. 

It has been two years since the liberation of Kabul and the defeat of the Taliban 

regime. Under the Taliban, twenty percent of the population lived as refugees and 

200,000 had been disabled by mines. Roads, irrigation, and other infrastructure 

were barely usable, and few Afghans had access to healthcare and education. 

Today, this is changing. Afghans enjoy restored liberties and opportunities that 

were unheard of in recent memory. An internationally recognized government is in 

power; schools have reopened; a new banking law is in place; businesses are blossoming around the country; and, most importantly, there is hope for a better future. 

It is also important to point out the challenges that remain before us, most importantly the threat to security posed by resurgent Taliban and Al Qaeda attacks. 

These challenges can be overcome with continued support, and we remain committed to success in Afghanistan. Your recent approval of over $1.2 billion in supplemental funds will allow us to build on our successes and help the Afghans establish 

a government that is moderate and democratic, stable and at peace with its neighbors, representative of all Afghan people, and that will never again be a haven for 

enemies of the United States. The supplemental includes $69 million for support to 

democracy and governance. Additional funds will support security sector development, which will help train Afghan police and military in the run up to elections. 

On December 5, 2001, various Afghan groups came together under U.N. guidance 

to sign the Bonn Agreement, laying the groundwork for democratic development in 

Afghanistan. In accordance with the Agreement, an Emergency Loya Jirga took 

place in June 2002, electing a transitional government (TISA) under President 

Hamid Karzai. Since then, lISA has continued to implement Bonn. In October 2002, 

President Karzai established a nine-member Constitutional Drafting Commission, 

which produced a preliminary draft constitution. In April 2003, a larger Constitutional Commission of thirty-five members began revisions of the draft and public 

consultations throughout the provinces and among refugee populations. 

Afghanistan will soon mark its next important political milestone. In December, 

500 delegates will convene a Constitutional Loya Jirga to ratify a final constitution. 

The Loya Jirga will represent the broad spectrum of Afghan society, including over 

90 women delegates. For the first time in almost forty years, the Afghan people will 

have an opportunity to define the future of their country. The draft constitution unveiled on November 3 represents a genuine effort on the part of Afghans to reclaim 

their rightful place in the community of nations. 

As with our own Constitution, the Constitution of Afghanistan is meant to be a 

document of the people, by the people, and for the people of Afghanistan. It must 

establish a democratic government in keeping with the unique cultural values of the 

Afghan people. Overall, the draft constitution is a good step toward these goals. 

The draft constitution establishes a democratically elected government with a system of checks and balances. A president is to be elected for a five-year term with 

at least fifty percent of the votes nationwide. A single vice president is announced 

by each presidential candidate before elections, but does not stand for election. 

The legislature resides in a bicameral national assembly. The Wolesi Jirga, or 

lower house, is directly elected for a five-year term. The number of Wolesi Jirga 

members is proportionate to the population of each region and will range between 

220 and 250 members. The Meshrano Jirga, or upper house, is elected in three divisions. The provincial councils elect one third of its members for a four-year term. 

The district councils elect the second third of the members for a three-year term. 

And, the President appoints the remaining third for a five-year term. The draft conVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
17

stitution dictates that at least one woman will be elected to the Wolesi Jirga from 

each of the 32 provinces, and half of the President’s appointments to the Meshrano 

Jirga must be women. 

Under the draft constitution, the judicial branch is composed of a single Supreme 

Court and two layers of appellate courts. There is no provision for a separate Constitutional Court or a Religious Court. The draft also provides for a Loya Jirga, the 

traditional assembly of Afghan leaders, which can be convened for decisions on 

changes to the constitution and other serious issues. 

In addition to provisions on government structure, the draft constitution establishes protections for human rights. It provides for basic rights and freedoms and 

specifically cites Afghanistan’s obligation to abide by international human rights 

treaties. The draft also recognizes the important role of Islam in Afghanistan without prohibiting the practice of other religions. 

The draft constitution also sets a timeline for elections. Presidential elections are 

to be held first, currently planned for June 2004 in keeping with the Bonn timeline. 

Legislative elections will then be held within one year of presidential elections. The 

United Nations Assistance Mission to Afghanistan (UNAMA) will begin registration 

for the elections in December, and UNAMA estimates the total cost will be $78.2 

million. We have already contributed $15 million to UNAMA for registration and 

other donors have contributed $27.2 million thus far. 

Throughout the drafting process, the United States has fulfilled its role as a 

friend to Afghanistan by providing resources and expertise to the drafting commission and giving counsel to the government of Afghanistan. The drafting of the constitution must be an Afghan process. As such, it is important to remember that the 

draft constitution is just that, a draft, and there will be no final constitution until 

one is approved by the Constitutional Loya Jirga. Until then, the United States will 

continue to support the constitutional process and offer our counsel when appropriate. 

Our objective is to bring lasting peace and stability to a country that has experienced very little of either in the last quarter century. I am confident that with your 

continued support we will succeed. 

Thank you.

Ms. ROS-LEHTINEN. Thank you, Ambassador Rocca. 

Secretary Craner. 

STATEMENT OF THE HONORABLE LORNE W. CRANER, ASSISTANT SECRETARY, BUREAU OF DEMOCRACY, HUMAN RIGHTS 

AND LABOR, DEPARTMENT OF STATE 

Mr. CRANER. Thank you, Madam Chairman, Madam Chair RosHeltinen, Chairman Gallegly, and Members of both Subcommittees. 

Thank you for holding this joint hearing on the human rights situation and the upcoming constitutional Loya Jirga in Afghanistan. 

Thanks to the efforts of the United States and our international 

partners, the people of Afghanistan enjoy more freedom and equality, greater security, and better opportunities than they have in 

decades. 

Troubles remain. In-fighting among various Afghan factions, 

along with the Taliban resurgence in the south and east have created a precarious security situation. The country continues to suffer from poverty, illiteracy, and health problems. Thousands of refugees have yet to be resettled. Societal discrimination continues 

against women, and trafficking of women and children, especially 

in rural areas, continues. 

We believe we are already creating a positive see-change in the 

human rights situation in Afghanistan. The Bonn Agreement established the Afghan Independent Human Rights Commission as a 

national institution mandated with defining the human rights 

agenda in Afghanistan. 

In addition to providing it with the necessary political support, 

the U.S. has already committed $1 million to the human rights 

18

commission. The recent supplemental you passed includes another 

$5 million. 

I spent a great deal of time with the Afghan Human Rights Commission during my visit to the country in July, and my bureau sent 

one of its senior level officers for 4 months to Afghanistan to meet 

with the human rights commission and to serve on one of our 

PRTs. 

There has been a see-change for the status of women in Afghanistan over the last 2 years. Girls’ enrollment in school is now at an 

all-time high for Afghanistan, with well over 1 million girls in 

school. Women enjoy greater freedom and movement, and are beginning to return to work. 

The Afghan government has established a Ministry of Women’s 

Affairs. The ministry is creating a network of women’s resource 

centers throughout the country to support women’s rights and economic empowerment. 

The Ministry of Public Health is also headed by a woman. The 

Ministry of Foreign Affairs has set up a division dealing with women’s issues, and the Ministry of Commerce set up a department to 

help women launch businesses. 

Finally, President Karzai has decreed that women will comprise 

89 of the 500 constitutional Loya Jirga delegates. The draft constitution also sets aside a number of legislative seats for women in 

both the upper and the lower chamber. 

Secretary Powell made our position on these issues clear awhile 

back when he said, ‘‘The rights of women in Afghanistan will not 

be negotiable.’’ The United States is following up on this commitment by incorporating women’s issues in many assistance programs. In the economic sector, the U.S. is providing training and 

funding women’s projects. 

The draft constitution is an Afghan product crafted by the Afghans for the Afghans. The draft establishes a democratically elected government, and includes broad human rights protections. It 

recognizes Afghanistan’s international human rights obligations, 

including references to international human rights instruments. 

The preamble specifically recognizes the importance of the role of 

civil society in a democracy and equal rights before the law. 

Article 24 elaborates, stating that liberty and dignity of human 

beings are inviable. 

The constitution also prohibits torture, freedom from being illegal 

arrested or detained, the right to expression, and the right of association. 

The draft constitution is also encouraging in that it guarantees 

significant female representation in the legislature. It makes particular provisions for the needs of women in education. It provides 

for the state to render necessary assistance to women without caretakers, and for the physical and psychological supportive families, 

including a child and mother. 

However, some have pointed out that while the rights of citizens 

are mentioned, more specifics are necessary. I will leave it to my 

colleagues, John Hanford, for a discussion of the portions of the 

constitution dealing with religion, but let me note some other 

issues. 

19

Though the draft makes wide provisions for the equal rights of 

all citizens before law, some have stated that it does not include 

a definition of who is a citizen, and does not state that both men 

and women are citizens. 

Many are also concerned with the rights of women. They suggest 

that more specifics need to be mentioned such as outlawing discrimination against women, forcing underage marriages, full rights 

of marriage, divorce, and inheritance. 

We are confident that Afghan leaders and delegates to the Loya 

Jirga will work to ensure that the constitution will be faithful to 

the highest aspirations of the Afghan people, and that these rights 

will be safeguarded and protected within Afghanistan’s obligations 

under international law. 

The people of Afghanistan face continued struggles in the rebuilding of their country. As I noted, there are many human rights 

concerns, such as the fact that treatment of women varies from one 

part of Afghanistan to another. President Bush has made clear that 

our nation has special responsibilities toward Afghanistan that we 

intend to honor. We will work with Congress to ensure that Afghans are protected by internationally recognized human rights 

standards. Our goal is to help Afghanistan become a peaceful, 

democratic, and prosperous nation that contributes to regional stability, and we again pledge to you today to work toward that end. 

Thank you again for holding this hearing. 

[The prepared statement of Mr. Craner follows:]

PREPARED STATEMENT OF THE HONORABLE LORNE W. CRANER, ASSISTANT SEC- RETARY, BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR, DEPARTMENT OF

STATE

Madame Chair Ros-Lehtinen, Chairman Gallegly, and Members of both Subcommittees, thank you for holding this joint hearing on the human rights situation 

in Afghanistan. Given the November 3 release of the draft Constitution by Afghanistan’s Constitutional Commission, and the upcoming Loya Jirga, this is certainly an 

appropriate time to focus on Afghanistan. 

On November 3rd, President Bush issued two public statements related to Afghanistan. In one, he noted the release of the draft Constitution, calling it an ‘‘important milestone in Afghanistan’s political development.’’ In the other, he thanked 

and ‘‘commended Congress for providing vital funds to support our mission and our 

troops deployed in Afghanistan. . . .’’ He said that the funds, ‘‘will be used to enable us to continue our efforts to help Afghanistan become a peaceful democratic 

and prosperous nation that contributes to regional stability.’’

The United States remains committed to a stable, democratic, and prosperous Afghanistan. Our continuing involvement and reconstruction efforts in Afghanistan, as 

well as the recent accelerated funding package of almost $1.6 billion in fiscal year 

2004, attests to our commitment. Assisting the Afghans and helping them create an 

environment in which civil society, the rule of law, and human rights can flourish 

are amongst our highest priorities. 

We have seen the devastating effects that the Soviet invasion, political instability, 

civil war, and repressive Taliban rule have wreaked on the lives of innocent Afghan 

civilians. We are also aware of the egregious human rights abuses committed by the 

Taliban, specifically against women and ethnic and religious minorities. 

Thanks to the efforts of the United States and our international partners, the people of Afghanistan enjoy more freedom and equality, greater security, and better opportunities then they have in decades. Yet some troubles remain. In-fighting among 

various Afghan factions, along with the Taliban resurgence in the south and east, 

have created a precarious security situation. 

The country continues to suffer from poverty, illiteracy, and health problems. 

Thousands of refugees have yet to be resettled. Unexploded, unmarked landmines 

from decades of war pockmark the countryside. Discrimination continues against 

women in the form of limited opportunities for participation in public life, domestic 

violence, rape, forced marriages, child marriages, trafficking of women and children, 

20

and honor killings, especially in the rural areas. We are aware and concerned about 

these problems and our efforts at assisting the Afghan people in their recovery are 

directed at addressing them. We believe we are already creating a positive sea 

change. 

One of the initial steps in creating the framework for a stable democracy was the 

Bonn Agreement, in which the international community, the United States, and important Afghan leaders agreed to the establishment of three important commissions: 

the Constitutional Commission, the Judicial Commission, and the Independent 

Human Rights Commission. The Agreement also provided a timeline for the holding 

of elections. 

The Bonn Agreement established the Afghan Independent Human Rights Commission (AIHRC) as the national institution mandated with defining the human 

rights agenda in Afghanistan. The United States supports the AIHRC in its important work and encourages it to actively promote and protect human rights, including 

the rights of women and minorities as well as religious freedom, within a framework 

that recognizes the particular historical, cultural, religious and social conditions in 

Afghanistan. 

In addition to providing it with necessary political support, the United States has committed $1 million to the AIHRC, of which the Bureau of Democracy, Human 

Rights, and Labor’s (DRL) Human Rights and Democracy Fund (HRDF) has provided $250,000. The recent supplemental includes $5 million that will be used for 

the AIHRC’s important mandate of establishing adequate commission capacity to 

formulate, develop, and manage its functions of processing petitions and complaints. 

My bureau sent one of its senior-level officers for four months to Afghanistan in 

order to meet with the AIHRC and serve on one of our five Provincial Reconstruction Teams. Provincial Reconstruction Teams combine military and civil aspects allowing for increased reconstruction in certain areas and assist in the expansion of 

central authority, rule of law, and civil society. 

One of the biggest human rights issues in Afghanistan is the treatment of women 

and girls. Although Afghan women still face many hurdles, the U.S. and its international partners have made significant efforts to improve women’s human rights. 

Many girls are beginning formal education, which was banned under the Taliban. 

Girls’ enrollment in school is now at an all-time high for Afghanistan with well over 

1 million girls in school. Women enjoy greater freedom and movement and are beginning to return to work. 

The Afghan government has established a Ministry of Women’s Affairs, headed 

by a woman, Habiba Sorabi, and created branch offices in most provinces. The Ministry is creating a network of Women’s Resource Centers throughout the country to 

support women’s rights and economic empowerment. The United States government 

will fund construction of women’s centers in 14 provincial locations across Afghanistan to provide health education, daycare, and job skills training to Afghan women. 

Construction has already begun in several of these provinces. In addition, the Ministry of Women’s Affairs has established an anti-trafficking technical working group 

to assist the Ministry in strengthening coordination between relevant ministries, donors and other parties and is working to draft anti-trafficking legislation. 

The Ministry of Public Health is also headed by a woman Minister, Suheila 

Siddiq. The Ministry of Foreign Affairs has set up a division dealing with women’s 

issues, and the Ministry of Commerce set up a department to help women launch 

businesses. 

Women are also represented in other positions of responsibility, as evidenced by 

Sima Samar who heads the Afghan Independent Human Rights Commission. In addition, President Karzai has decreed that women will comprise nearly 90 of the 500 

Constitutional Loya Jirga delegates, who will convene next month to adopt a new 

constitution for Afghanistan. The draft constitution also sets aside a number of legislative seats for women in both the upper and lower chamber of its bicameral parliament. Outside of government, women’s access to public life, health care, education, and employment is improving. 

Women, however, remain targets of opportunity for those who wish to prevent the 

emergence of a tolerant, democratic Afghanistan. Resurgent anti-government forces 

have singled out women by attacking girls’ schools, and women still face social barriers, threats from hard-liners, domestic violence, trafficking, and forced and child 

marriages in private life. This is a serious concern. Secretary Powell made our position clear a while back when he said, ‘‘The rights of women in Afghanistan will not 

be negotiable.’’ To address these issues, the United States Government is conducting 

domestic violence awareness campaigns and training for the police and the judiciary. 

The U.S. is also addressing women’s concerns by incorporating women’s issues in 

many assistance programs, including health clinics, schools, and market centers. In 

21

addition to support for the Ministry of Women’s Affairs, the U.S.-Afghan Women’s 

Council is forging bi-national, public-private partnerships to address women’s 

issues. In the economic sector, the U.S. is providing training and funding women’s 

projects, including the production of traditional carpets and cloth, garden projects, 

day care centers, bakeries, and micro-finance loans to help women start their own 

businesses. 

These rights will only be protected in the context of a clear and precise constitution that creates the foundation for a solid democracy and protects the fundamental 

rights of all citizens, regardless of gender or ethnic, linguistic, and religious background. 

The draft constitution is an Afghan product drafted by the Afghan people for the 

Afghan people. This draft establishes a democratically-elected government and includes broad human rights protections. It recognizes Afghanistan’s international 

human rights obligations, including references to international human rights instruments such as the Universal Declaration of Human Rights, the UN Charter, and 

the international treaties and conventions that Afghanistan has signed. 

The preamble specifically recognizes the importance of the role of civil society in 

a democracy and equal rights before the law. Article 24 elaborates, stating that 

‘‘Liberty and dignity of human beings are inviolable.’’ The constitution also prohibits 

torture, freedom from being illegally arrested or detained, the right to expression 

and the right of association, all within provisions of the law. These are freedoms 

that must be enshrined and preserved for all democracies in order to ensure security, stability, and equality; and we applaud these efforts. 

The constitution also establishes the Afghan Independent Human Rights Commission to serve, monitor, and protect human rights, including reference to legal authority when rights have been violated. However, some have pointed out that while 

the rights of citizens are mentioned, more specifics are necessary in order to prevent 

possible extremist elements from imposing an unfavorable interpretation of the constitution. They point to the fact that the draft only mentions freedom for followers 

of other religions as ‘‘free to perform their religious ceremonies within the limits of 

the provisions of the law’’ and that no law ‘‘can be contrary to Islam.’’ They note 

that while Shar’ia is not addressed, Hanafi law and jurisprudence is to be applied 

except in cases related to the Shi’a minority. The new Supreme Court, which is 

given the power to interpret the constitution, is to be composed of a mix of judges 

trained either in secular law or Islamic jurisprudence. Furthermore, although freedom of expression is ‘‘inviolable’’ it is also regulated by the law. In the Afghan context, it remains to be seen what this law will be and how these provisions will be 

interpreted. 

Though the draft makes wide provisions for the equal rights of all citizens before 

the law, the draft does not include a definition of who is a citizen, and does not state 

that both men and women are citizens. Many groups concerned with the rights of 

women also suggest that more specifics need to be mentioned, such as outlawing 

discrimination against women, forced and underage marriages, full rights of marriage, divorce, and inheritance for women so that their rights are preserved and protected from possible extremist interpretations. Specifically, if these issues are treated as personal or within family law, then Shar’ia law could take precedence, and 

certain law codes could prevail. 

Yet the draft constitution is also encouraging in that it guarantees significant female representation in the legislature (specifying that at least one woman from each 

province will be directly elected in the lower house and that half of the third appointed by the president to the upper house must be women). It also makes particular provisions for the needs of women in education, noting the state’s responsibility to devise and implement effective programs for promoting education for 

women (Article 44). It provides for the state to render necessary assistance to 

women without caretakers (Article 53) and for the physical and psychological support for families, including the child and mother. Indeed, article 54 states, ‘‘The 

state adopts necessary measures to ensure physical and psychological well-being of 

the family, especially of the child and mother.’’ We are confident that Afghan leaders and delegates to the Loya Jirga will work to ensure that the constitution will 

be faithful to the highest aspirations of the Afghan people and that these rights will 

be safeguarded and protected within Afghanistan’s obligations under international 

law. 

The supplemental funding legislation makes clear Congress’ resolve to encourage 

a broad-based representative government in Afghanistan that promotes and safeguards the rights of all. Congress has called upon the Administration to promote 

a high level of participation by women in legislative bodies and ministries and to 

ensure that women have access to credit, property and other economic opportunities. 

22

The people of Afghanistan face continued struggles in the rebuilding of their country. There are still human rights concerns, such as the fact that the treatment of 

women varies from one part of Afghanistan to another. There have been reports of 

reprisals based on ethnicity, and some elements want to re-impose some Islamic restrictions. But, President Bush has made it clear that our nation has special responsibilities towards Afghanistan that we fully intend to honor. In this endeavor, we 

will work with Congress to ensure that Afghans are protected by internationally recognized human rights standards. Our goal is to help Afghanistan become a peaceful, 

democratic and prosperous nation that contributes to regional stability. Thank you, 

again, for holding this important hearing.

Ms. ROS-LEHTINEN. Thank you so much. 

Ambassador Hanford. 

STATEMENT OF THE HONORABLE JOHN V. HANFORD III, AMBASSADOR-AT-LARGE, OFFICE OF INTERNATIONAL RELIGIOUS FREEDOM, DEPARTMENT OF STATE 

Mr. HANFORD. Thank you. Madam Chair, Mr. Ackerman, Mr. 

Sherman, and Members of the Subcommittees, 3 years ago few 

would have conceived that the people of Afghanistan would today 

be in the process of creating and adopting a constitution. In the 

short time, Afghanistan has come a long way, but there is still a 

ways to go. 

Let me frame my comments today with two preliminary observations. 

First, we must always keep in mind that this constitution belongs to the people of Afghanistan. The United States has and will 

continue to support the process and lend our expertise, but the constitution itself is not ours, it is theirs. 

At the same time, we know that no nation is an island, that conditions in one country can have profound consequences for other 

nations, and that universal human rights transcend political and 

geographic borders. 

Afghanistan’s recent history offers a compelling illustration in 

this regard. While must of the international community paid little 

attention to the woeful conditions in Afghanistan under the tyranny of the Taliban, the United States found partners in two 

groups which persistently sounded the alarm: Women’s rights advocates and religious freedom advocates. 

Religious freedom is not a gratuitous ideal or luxury for a constitution. It is indispensable to restoring stability in Afghanistan, 

and one need look no further than those who seek to undermine 

stability in Afghanistan today by reimposing rule by religious extremists. 

So it is also with promoting democracy, of which religious freedom is a cornerstone, religious freedom by its nature encompasses 

several other democratic freedom, including freedoms of conscience, 

speech and assembly, all of which form an interwoven and mutually reenforcing foundation for democracy to take hold. 

Turning now to the specific provisions in the draft constitution 

that pertain to religious freedom, let me highlight some of the positive aspects, and then comment on areas that could be further improved. 

First, and in many ways most importantly, the draft explicitly affirms international human rights standards. The universal declaration of human rights, and the international covenant on civil and 

political and civil rights to which Afghanistan is a party, both conVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00028 Fmt 6633 Sfmt 6601 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
23

tain robust guarantees of religious freedom as a fundamental and 

universal human right. 

Second, though the drafters have come under pressure to impose 

Shari’a law, the draft does not explicitly codify Shari’a as the law 

of the land. 

Third, the draft acknowledges followers of other religions, and affirms their right to worship. 

However, there are some areas of the draft constitution that we 

believe could be improved. 

First, the draft does not explicitly guarantee or even mention religious freedom. Though the clause on non-Muslims affirms a qualified right to ‘‘perform religious ceremonies,’’ full religious freedom, 

of course, encompasses much more than that. 

Second, the draft language is ambiguous on which standard 

holds the highest legal authority. Some rights, such as freedom for 

non-Muslims to perform ceremonies as well as the basic freedom of 

expression, are conditions are an undefined ‘‘law.’’ Elsewhere the 

draft states that no law can be contrary to the sacred religious of 

Islam. 

Taken alongside the commitment to abide by international standards, these three standards, the religion of Islam, an undefined 

law, and international standards, are left in apparent tension and 

even conflict. 

Third, the draft still privileges one particular interpretation of Islamic jurisprudence, potentially undermining the religious freedom 

of other Afghan Muslims. It states that in issues not expressly addressed by the constitution or laws, judges shall follow the Hanafi 

school of jurisprudence. We would recommend instead that the Afghan constitution guarantee equal rights and treatment for all 

Muslims. 

In conclusion, let me note that many scholars have observed that 

at least two components are especially vital to the constitutional 

process in countries emerging from severe trauma and conflict, 

such as Afghanistan. 

The first is that the new constitution must specifically address 

the particular problems that had afflicted that society. In South Africa, it was racial apartheid. In Afghanistan, it was religious extremism and intolerance. 

Second, as many citizens as possible must embrace the new constitution. Its efficacy will rest on its popular acceptance. 

Now, these two factors not surprisingly often come into tension 

with each other. As the people of Afghanistan prepare to enter the 

next phase of this process with the constitutional Loya Jirga, we 

will continue to encourage language affirming religious freedom 

written not only in the text of the constitution, but written in the 

hearts of the people as well. 

Thank you for holding this important hearing, and I look forward 

to continuing to work with the Committee to advance religious freedom around the world. 

[The prepared statement of Mr. Hanford follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN V. HANFORD III, AMBASSADOR-ATLARGE, OFFICE OF INTERNATIONAL RELIGIOUS FREEDOM, DEPARTMENT OF STATE

Madame Chair Ros-Lehtinen, Chairman Gallegly, Mr. Sherman, Mr. Ackerman 

and Members of the Subcommittees, three years ago, few would have conceived that 

24

the people of Afghanistan would today be in the process of creating and adopting 

a Constitution. Three years ago, few would have imagined that the people of Afghanistan would be preparing to elect their own government and leaders. Few could 

even picture the people of Afghanistan beginning to enjoy protection of fundamental 

human rights and liberties. In a short time, Afghanistan has come a long way. But 

there is still a ways to go. 

My particular focus is on religious freedom, and here today I will briefly lay out 

some thoughts on the accomplishments made in Afghanistan thus far, areas still 

needing improvement, and the broader connections between religious freedom, democracy, and stability. 

We see the stakes here as very high. Afghanistan’s constitutional process provides 

a profound opportunity to not just engage in but begin to answer the prevailing debate: is Islam compatible with democracy? We and our Afghan partners believe that 

the answer is and can be ‘‘yes.’’ With this constitutional draft, the Afghan people 

have begun the process of answering that question in the affirmative. 

Let me frame my comments today with a few preliminary observations. First, we 

must always keep in mind that this constitution belongs to the people of Afghanistan. Obvious though this may be, it bears emphasizing. The United States has and 

will continue to support the process, help create conditions in which it can go forward, and lend our expertise and input as appropriate. But the constitution itself 

is not ours, it is theirs. 

At the same time, while the Constitution belongs to the people of Afghanistan, 

we hardly need reminding that no nation is an island, that conditions in one country 

can have profound consequences for other nations, and that universal human rights 

transcend geographic and political borders. 

Afghanistan’s recent history offers a compelling illustration in this regard. While 

much of the international community paid little attention to the woeful conditions 

in Afghanistan under the tyranny of the Taliban in the late 1990s, the United 

States found partners in two groups which persistently and passionately sounded 

the alarm: women’s rights advocates and religious freedom advocates. As with so 

much else, this also changed after September 11. With our efforts to rid Afghanistan 

of the terrorists that lived with impunity in Afghanistan, the world had an opportunity to heed the call of these great advocates, and to provide the women, children 

and men of Afghanistan with a brighter future. It was an opportunity to highlight 

for the international community that oppression of individual rights at home threatens international security abroad, and religious persecution often inspires religionbased terrorism. 

In some respects, there are close connections between women’s rights and religious freedom. Much of the oppression of women was driven by the Taliban’s religious intolerance. Today, some of the same voices who seek to restrict Afghan 

women also seek to deny religious freedom to the Afghan people, including Afghan 

women. In turn, promoting religious freedom is vital to promoting the rights and 

welfare of women. 

Religious freedom is not a gratuitous ideal or luxury. It is indispensable to restoring stability in Afghanistan, and anywhere there is instability or conflict. One need 

look no further than those who seek to undermine stability in Afghanistan by reimposing rule by religious extremists. So it is also with promoting democracy, of 

which religious freedom is a cornerstone. Religious freedom includes several other 

democratic freedoms, including freedoms of conscience, speech, and assembly, all of 

which form an interwoven and mutually-reinforcing foundation for democracy to 

take hold. 

Another hallmark of democracy is openness, and in this respect I was encouraged 

by the public release of the draft text of the proposed Afghan Constitution. Making 

it available not only to the people of Afghanistan but the entire world will inspire 

confidence, as the draft continues to be debated, refined, improved, and embraced. 

Turning now to the specific provisions in the draft that pertain to religious freedom, let me first highlight some of the positive aspects, and then comment on some 

areas that could be further improved. 

First, and in many ways most importantly, the draft explicitly affirms international human rights standards. Chapter 1, article 7 says that ‘‘the state shall 

abide by the UN Charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights.’’ Article 18 

in the Universal Declaration of Human Rights and in the International Covenant 

on Civil and Political Rights, to which Afghanistan is a party, both contain a very 

robust guarantee of religious freedom as a fundamental and universal human right. 

In the words of the Universal Declaration, this means ‘‘Everyone has the right to 

freedom of thought, conscience and religion; this right includes freedom to change 

his religion or belief, and freedom, either alone or in community with others and 

25

in public or private, to manifest his religion or belief in teaching, practice, worship 

and observance.’’ That the Afghan Constitution would reiterate Afghanistan’s fidelity to such standards is a very significant step, both for religious freedom as well 

as for Afghanistan’s commitment to the rule of law. 

Second, though the drafters have come under some pressure to do so, the draft 

does not explicitly codify Shari’a as the law of the land. Some interpretations of 

Shari’a law, particularly those followed by Islamic extremists, pose significant 

threats to religious freedom for both Muslims and non-Muslims. Though the draft 

affirms in several ways the significance of Islam and Islamic principles in Afghanistan, it avoids invoking Shari’a, and thus avoids in this way undermining religious 

freedom. 

Third, the draft acknowledges followers of other religions, and affirms their right 

to worship. Given Afghanistan’s past dominance by Islamic extremists and its small 

population of non-Muslims, this provision should not be overlooked or underappreciated. In the words of chapter 1, article 2, ‘‘Followers of other religions are free to 

perform their religious ceremonies within the limits of the provisions of law.’’ This 

guarantee of a place for non-Muslims in Afghanistan marks a positive step towards 

pluralism and religious tolerance. 

There are some aspects that we believe could be improved. First, the draft does 

not explicitly guarantee religious freedom. Though the clause on non-Muslims affirms a qualified right to ‘‘perform religious ceremonies,’’ full religious freedom encompasses much more. As religious liberty scholar Paul Marshall has commented 

in this regard, ‘‘this is a right merely to ceremonies, and there is no religion whose 

practice is limited merely to ceremonies.’’ If this article on followers of other faiths 

is to meet international religious freedom standards such as Article 18, it will need 

to be strengthened considerably. 

Second, the draft language is ambiguous on which standard holds the highest 

legal authority. Some rights, including the aforementioned freedom for non-Muslims 

to perform religious ceremonies, as well as freedom of expression in Article 34, 

Chapter 2, Article 13, are conditioned on or subject to an undefined ‘‘law.’’ Elsewhere, the draft states that ‘‘no law can be contrary to the sacred religion of Islam.’’ 

Taken alongside the commitment to abide by international standards, these three 

standards (the ‘‘sacred religion of Islam,’’ an undefined ‘‘law,’’ and international 

standards) are left in apparent tension and even conflict. Many observers fear that, 

absent an explicit commitment that nothing in Afghanistan’s constitution and laws 

will violate international standards, the potential exists for extremist judges or officials to enforce their own policies or interpretations that violate religious freedom. 

Third, the draft still privileges one particular interpretation of Islamic jurisprudence, potentially undermining the religious freedom of other Afghan Muslims. Article 130, chapter 7, Article 15 states that in issues not explicitly addressed by the 

Constitution or laws, judges shall follow the Hanafi school of jurisprudence. Such 

instances could violate the religious freedom of Afghan Sunnis who do not adhere 

to the Hanafi school, or of Afghan Shi’a involved in a dispute with Afghan Sunnis. 

We would recommend instead that the Afghan Constitution guarantee equal rights 

and treatment for all Muslims. 

There are some who seem to believe that religious freedom is a concern only for 

the very small percentage of Afghan residents who are non-Muslims. Nothing could 

be less true, or more worrisome. Religious freedom is and will be of concern to all 

Afghans, including Muslims of all kinds. Afghan Muslims suffered greatly under the 

Taliban’s religious intolerance. These extremists abused religion for political gains. 

Leveraging the power of the state to enforce their own intolerant interpretation of 

Islam, they silenced and repressed other Muslim voices. 

But today, Afghan Muslims are leading the effort to rebuild their country, their 

society, and their institutions. Islam has a rich and diverse history and a rich and 

diverse array of traditions and interpretations. Religious freedom is vital to ensuring that Sunni and Shi’a, and the several different schools of jurisprudence and traditions of Islam, are all protected, and all have a voice. 

Many scholars and observers have concluded that at least two components are especially vital in the constitutional process in countries emerging from severe traumas or conflicts, such as Afghanistan. The first is that the new constitution must 

specifically and directly address the particular problems that had previously afflicted the society. In South Africa, this was racial apartheid. In Afghanistan, it was 

religious extremism and intolerance. Second, as many citizens as possible must embrace the new constitution. Not only its efficacy but its very legitimacy will rest in 

many ways on its popular acceptance. These two factors, not surprisingly, often 

come into tension with each other, and Afghanistan is no exception. This is why we 

speak of the constitutional process. As the people of Afghanistan prepare to enter 

the next phase of this process with the Constitutional Loya Jirga, we will continue 

26

to encourage language affirming religious freedom written not only in the text of 

the Constitution, but written in the hearts of the people as well. 

Thank you for holding this important hearing. I look forward to continuing to 

work with the Committee to advance religious freedom around the world.

Ms. ROS-LEHTINEN. Thank you so much, and I thank all of the 

panelists for going under the radar there with the time. Thank you 

so much. We appreciate it because then we have more time for 

questions. 

I have one question for all of you if you would like to answer, 

and we had been discussing it in all of your testimonies. 

Article 17 as proposed would require the Afghan government to 

adopt necessary measures for organizing and improving the conditions of madrassas, schools. Given the recent history of the Saudi 

and Pakistani-sponsored madrassas functioning as breeding 

grounds for terrorist violence, anti-semitic acts, anti-American sentiment, this article is potentially worrisome. 

So how is the United States Government interpreting these provisions? What discussions have we undertaken with the Afghan officials and members of the constitutional commission on how these 

provisions will actually be implemented, and in what way might 

the Afghan government organize and improve the madrassas? 

Mr. CRANER. Madam Chair, I would say two things. 

Number one, we are spending a great deal of money and effort 

and time trying to enhance the educational system in Afghanistan 

so that it is not purely about religion, to the extent of issuing millions of textbooks, ensuring, I think, we have now trained 3,500 

teachers, rehabbing schools. 

But the second part of the answer will be I do not think that the 

Afghan people are going to have a tolerance for people from any 

other country coming to begin their schools. 

There is a belief in Afghanistan that the ravages of the Taliban 

were visited, I understand, by Afghans, but they believe that the 

control of other countries, including some of the countries you mentioned, and there is very little tolerance in Afghanistan for allowing 

that kind of thing to begin again or to continue. They have already 

seen the results of that once. 

Ms. ROS-LEHTINEN. Ambassador Rocca. 

Ms. ROCCA. I would just add that the central government support 

and eventually coordination of the education system is going to 

help address the problems with madrassas, and their funding in 

Afghanistan as well. 

Ms. ROS-LEHTINEN. Ambassador. 

Mr. HANFORD. And I would point out how much encouragement 

comes from certain polls that had been conducted with the Afghan 

people. It is really remarkable that such a high majority oppose 

Shari’a law, or the imposition of anything coming close to what the 

Taliban implemented. And I think it is going to be important for 

the government to be vigilant in conducting safeguards to keep radical Imams and others from taking hold. 

I just got back from Saudi Arabia, and even there the government is starting an aggressive campaign to root out this sort of 

thing, having, of course, recently suffered with the consequences. 

Ms. ROS-LEHTINEN. Thank you. And Ambassador Craner, just 

one last question for you. 

27

Please discuss the types of programs that are being directed at 

Afghan women for voter education. How informed are the Afghan 

women about the constitution, about the Loya Jirga process in various regions? 

We understand that the Afghan women’s ministry is establishing 

a separate registration program for women, run by women. Do you 

believe that this will effectively address some of the challenges 

faced by women in Afghanistan, and ensure female participation in 

the political process at all levels? How optimistic are you that this 

is going to be a success story for the plight of Afghan women who 

have had a long and difficult time of it? 

Mr. CRANER. I think the efforts by the ministry, I think the efforts by the United States, I think the efforts by the U.N. are going 

to enable women to understand their rights in the new Afghanistan, not only in terms of voting in a democratic election, but in 

terms of being able to stand for office in a democratic election, 

which is something, a luxury, it has been a luxury in Afghanistan 

that has not existed for many decades. 

So I am confident that by the time the election occurs, and during this winter, that word is going to reach out more and more. 

Even with the high levels of the illiteracy, there are good plans, especially with radio, to get the message out to people, and there are 

plans to go almost from village to village to get that message out. 

Ms. ROS-LEHTINEN. Well, thank you so much. 

We passed a resolution this morning on the Floor regarding this 

very issue as well. Thank you. 

Mr. Sherman. 

Mr. SHERMAN. Thank you, Madam Chairman. 

What is Pakistan doing to prevent the Taliban and al-Qaeda 

from using its territory to launch attacks into Afghanistan? 

In a report published today, I believe it was, in The Washington 

Post, the soon-to-be Ambassador from Pakistan suggested that 

Pakistan could and should do more. Will they? 

Ms. ROCCA. Congressman, we have seen notable progress over 

the last couple of months on the Taliban issue and on the border 

issue. This is something which—in terms of working with Pakistan. 

As you know, we have had phenomenal—I think that was in that 

same article—phenomenal cooperation on al-Qaeda. We are now 

working with them also to encourage them to prevent Taliban from 

crossing the border, and preventing Taliban from reorganizing and 

having a platform from which to reorganize within Pakistan. 

We have seen them conduct some operations where the are starting to arrest Taliban. We have seen some reorganization within the 

ministry so that they have more efficient operational capabilities. 

They started building a fence. There is a lot to do. It is an area 

which——

Mr. SHERMAN. A fence, so the Administration does not oppose 

border fences everywhere, just some places? It is good to note that 

for the record. 

Please go on. 

Ms. ROCCA. We also have a fair amount of support for the 

Taliban——

Mr. SHERMAN. That is a really good fence then. Go ahead. 

28

Ms. ROCCA. There is also a fair amount of support for the 

Taliban and for what the Taliban believe in in the federally administered tribal areas, and what we have——

Mr. SHERMAN. And there is substantial support for the Taliban 

ideology in the security service of Pakistan. Has there been a—

have the supporters of that ideology in that intelligence service 

been removed or converted? 

Ms. ROCCA. There is a number of answers to that, and some 

which I could not answer in this forum. But the programs that we 

have going in the federally administered tribal areas are very much 

aimed at exactly this problem. 

Mr. SHERMAN. I look forward to talking to you about that later, 

but I want to shift to another topic, and that is, we have two models. We have an Iraq where apparently the only choices being given 

to us are cut-and-run, or Jeffersonian democracy, a situation in 

which AID workers can work in every corner of the country where 

Americans patrol every corner of the country. 

Afghanistan offers a middle road between that. Let us face it, we 

have not tried to have security throughout Afghanistan. We are experiencing very few casualties in Afghanistan, not because Afghanistan is safer, but just because American troops and European 

troops and allied troops are in fewer places, and are trying to 

achieve a less sophisticated goal. 

Why does the Administration believe that we have to bring security peace and progress to every corner of Iraq even if that takes 

the amount of effort we are putting in, and well over 130,000 

American troops, but that it is sufficient to have security only in 

Kabul in influence over the rest of Afghanistan? 

Why is Afghani security progress in the rural areas outside the 

capitol so much less important to us? 

Ms. ROCCA. Congressman, I am not qualified to talk about Iraq, 

but in Afghanistan, I think security is the most important issue to 

the United States at this moment. 

Mr. SHERMAN. But we are simply settling for less security. We 

do not have thousands of troops in every province in Afghanistan, 

do we? 

Ms. ROCCA. No, but we have 7,000 troops in the ground. 

Mr. SHERMAN. We have 7,000 troops, and we accept a low-level 

of security in most areas as compared to 130,000 troops where we 

try to patrol even the most dangerous areas. 

Ms. ROCCA. We are going at it systematically. We have the PRTs 

that are moving out to the provincial regions. We have got ISAF 

taking over and currently NATO is having a debate on expanding 

it. This is—we are going about it systematically, and I think it is—

I just want to reiterate that it is the most important——

Mr. SHERMAN. But there are lots of places in Afghanistan even 

less accessible to AID workers, less secure than Faluja. 

Ms. ROCCA. Those areas is where you probably would find the 

U.S. soldiers now, sir, in the southeastern areas where we continue 

to conduct Operation Enduring Freedom. 

Mr. SHERMAN. I do not know if your other Administration colleagues have any response, but clearly, these countries have roughly equivalent populations, and we are able to have 7,000 troops in 

one, and we need 130,000 troops in the other. Is that because AfVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
29

ghanistan is just a safer, quieter, more organized place with less 

opposition, or is that because we are accepting a lower standard of 

security and a lower level of achieving that security throughout the 

country? 

I wonder if anybody can respond to that question. 

Ms. ROCCA. I cannot, but I have got one more thing I would like 

to add. 

Mr. SHERMAN. But you are not ready to tell me that Afghanistan 

is only—I am doing the math in my head—about 4 or 5 percent as 

dangerous a place as Iraq, and that is why we only need 5 percent 

as many troops? 

Ms. ROCCA. We are also very busy building up an Afghan national army, and we have got a good——

Mr. SHERMAN. And we are doing that in Iraq as well. We have 

over 100,000 people under arms in Iraq. Are we doing any better 

in Afghanistan? 

Ms. ROCCA. I cannot compare with Iraq, sir. 

Mr. SHERMAN. Well, how many troops do we have, how many security personnel get their pay checks from Mr. Karzai, President 

Karzai? 

Ms. ROCCA. Well, we hope to have over 10,800 by the election 

next year. 

Mr. SHERMAN. We hope to have. So we have 100,000 on our payroll in Iraq, and I think it is up to 150 actually, plus 130,000 

troops. We have well over 20 times the security effort in Iraq than 

we do in Afghanistan, and that is not because Afghanistan is a 

quieter, safer place. It is not the Arlington of the Middle East. 

I yield back. First, let me ask whether——

Ms. ROS-LEHTINEN. Go right ahead. 

Mr. SHERMAN [continuing]. If either of you have any response to 

that. Going once. I yield back. 

Ms. ROS-LEHTINEN. Thank you. Mr. Janklow. 

Mr. JANKLOW. Thank you very much. 

You see, we are all military experts just because we get elected. 

Let me ask you, Ms. Rocca, if I can for a moment, is Afghanistan 

a NATO operation or a United States operation? 

Ms. ROCCA. Well, security in Kabul is NATO. It is run by ISAF 

which at the moment controlled by NATO. We, the United States 

have some PRTs out in the field, and we also have the ongoing Operation Enduring Freedom. 

Mr. JANKLOW. So really the structure, the force structure is different in Iraq and in Afghanistan, is it not, as far as you know? 

Ms. ROCCA. As far as I know. 

Mr. JANKLOW. And with respect to the neighbors of Afghanistan, 

and the neighbors of Iraq, do you know whether or not Pakistan 

is more helpful to us than Syria, for example, which is next to Iraq, 

or Iran is next to Iraq? 

Ms. ROCCA. I cannot make any comparison. 

Mr. JANKLOW. And with respect to the selection of this constitutional commission, and I am asking all three of you, my understanding is they were appointed; is that correct? 

And this appointed group has not had a lot of public discussion 

at this point. When does that come? 

30

Mr. HANFORD. There has been a great deal of public discussion 

of the principles of this constitution. When I was there——

Mr. JANKLOW. Throughout the entire country? 

Mr. HANFORD. Yes. Yes. 

Mr. JANKLOW. Okay. 

Mr. HANFORD. When I was there in July, members of the government, including members that were drafting a draft of the constitution, had just been out in every corner of Afghanistan basically, not 

with copies of the constitution as it then existed, but with the ideas 

and the principles and some of the thoughts and some of the provisions that are in the constitution to get ordinary peoples’ opinions 

of where they were going. 

Mr. JANKLOW. Are our NATO allies and are other countries assisting in this constitutional drafting process, or is this something 

we have taken a primary role in? 

Mr. HANFORD. It is the Afghans that have taken the primary role 

in it. You have to remember many of them——

Mr. JANKLOW. No, I am talking about assisting in the process. 

Mr. HANFORD. Assisting in the process? 

Mr. JANKLOW. Do we assist in the process? 

Mr. HANFORD. The U.N. in particular has assisted in the process. 

We have had a role. But ultimately this is an Afghan product. 

Mr. JANKLOW. Agreed. 

Mr. HANFORD. There has been some help, sir. I know there is a 

prominent French constitutional scholar who has helped, prominent American constitutional scholar has also been involved in this. 

Mr. JANKLOW. I have been furnished a copy of draft articles 118. 

In part it says that:

‘‘The members of the supreme court should have higher education in law or Islamic jurisprudence . . .’’

It is an ‘‘or.’’

‘‘. . . and should have enough expertise and experience in the 

judicial system of Afghanistan.’’

And then it goes on to say in the notes I have:

‘‘Additionally, members of the supreme court must take an 

oath to support justice and righteousness in accordance with 

the provisions of the sacred religion of Islam and the provisions 

of the constitution and other laws of Afghanistan.’’

Now, is this something that is under serious discussion in the 

country or is this particular set of provisions probably a fait 

accompli at this point in time? 

Mr. HANFORD. One of the problems is that they do not have an 

adequate pool of persons trained outside of the religious milieu, at 

least as adequate as we would like, and this needs to be a top priority for instituting and training and legal reform. 

Right now the Italian government possesses primary responsibility on the ground for setting up training judicial, lawyers and 

the system, but we need to be involved with that as much as we 

can, but it is an issue of real concern. 

Mr. JANKLOW. But my guess is, and that is all it is, that given 

the nature of the country we are dealing with, it is history both 

historical and contemporary with respect to the predominant reliVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
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gion in the country. I realize there is different sects, but the predominant religion in the country, it would appear to me this would 

not be a particular provision around which you would have lots of 

people throughout the country in the public discussions say we 

need to get this out of there or change it dramatically. 

So what is the odds it is going to change in any material way? 

Do you have any guesstimate? I hope you understand what I am 

trying to get at. 

Mr. HANFORD. I am sorry. What was that last question? 

Mr. JANKLOW. Do you have any guesstimate as to what the odds 

are that this is going to change in any material way? 

Mr. HANFORD. I think it will change slowly because illiteracy, as 

you know, is such a serious problem. And so just having a pool of 

literate people that can be trained to be judges is a challenge. 

We are concerned. You see quotes, for example, from the Chief 

Justice of the Supreme Court that would strike us at times as extreme. When you see ambiguities in the constitution, we have to 

wonder how are these ultimately going to be interpreted. 

Mr. JANKLOW. One last question if I could, Madam Chairman. 

We understand, at least I do, about how they are going to select 

the head of the country, the chief executive, and, you know, assuming the draft constitution is successful or passes, how they are 

going to set up the legislative. How is the supreme court going to 

be selected under the draft constitution? 

Ms. ROCCA. By the President. 

Mr. JANKLOW. By the President? 

Ms. ROCCA. Yes. 

Mr. JANKLOW. Any other people in the process and for how long? 

Ms. ROCCA. Yes, the lower house confirms the President’s nominations. 

Mr. JANKLOW. And for how long, ma’am? 

Ms. ROCCA. Ten years, I believe, but let me check. 

Mr. JANKLOW. Thank you, Madam Chairman. 

Ms. ROS-LEHTINEN. Thank you so much. 

A loyal Member of our Subcommittee, Ms. Watson 

Ms. WATSON. Thank you, Madam Chair, for your courtesy. 

I have been really concentrating not only in Afghanistan but in 

Iraq on how we go about helping them draft a constitution. I think 

we could all agree that at the current time these are—in the recent 

past, these governments were theocracies. I just had staff look up 

theocracy: Government of a state by the immediate direction or administration of God or whatever their supreme being is. 

And I think about the history of these countries. I am going to 

ask the Ambassador, how certain are we that we can have them 

write or draft a constitution that fulfills our need for a democratic 

model when we know that these countries are steeped in their religion and their religion-controlled government, their religious 

thought, their ideology? 

And as I was reading through the notes in preparation, it says 

that:

‘‘To satisfy Afghanistan’s conservative clerics, there will be a 

stipulation that laws should not contradict Islamic law.’’

How are we going to deal with that? Can you help on this? 

32

Mr. CRANER. This is not the only country in the world, the only 

Islamic country in the world——

Ms. WATSON. Exactly. 

Mr. CRANER [continuing]. That is going to become a democracy. 

You have examples from Bangladesh to Indonesia to elsewhere, 

where this is an issue that has come up. It is not the case that—

other than in the very recent past it was not the case that Afghanistan was a theocracy. 

And so we are going to see the kind of thing we talked about 

elsewhere in the region, in the Middle East and elsewhere. We are 

going to see the interplay of Islam and democracy. 

Now, as I have said, you have seen that in countries that I think 

can fairly be described as democracies 

Ms. WATSON. Well, I would like to stick with Afghanistan. 

Mr. CRANER. Okay. 

Ms. WATSON. And maybe Iraq, and I understand that the authority will be in the hands of judges educated in Islamic law rather 

than civil law. 

Mr. CRANER. Just to clarify, the oath that they will take, it does 

talk about in accord with the provisions of the sacred religion of 

Islam, but it then goes on:

‘‘. . . and the provisions of this constitution and other laws of 

the Afghanistan.’’

So my point is you are going to see the interplay of the two, of 

Islam and of laws here that we would recognize as protecting civil 

and political and other human rights The two are not—I guess my 

point is the two are not necessarily contradictory. 

Ms. WATSON. I think in some cases they will be if we are expecting as a goal. So my question really goes to, and I am putting Afghanistan and Iraq together here, what is it that we expect, if we 

are the force that is kind of moving them toward a draft constitution modeled after, and this is what I have been hearing, modeled 

after western style democracy, is our goal to have a mix where 

there is a confluence between Islamic and civil law as we—well, 

civil law as we know it, or will we accept something less? 

I just do not know what we are expecting out of these two countries. 

Mr. CRANER. Our goal is to see—in both countries is to see a system where internationally protected, international human rights, 

internationally recognized human rights are protected. We do not 

have western style democracies in many countries in Asia or Africa 

Ms. WATSON. No, no, I know. Just stick with my two countries 

here because I really want to know what is it that we are looking 

for. 

Mr. CRANER. That is what we are looking for in both states, 

internationally recognized human rights are protected. 

Ms. WATSON. Now, I am troubled, because having traveled in 

these countries and lived very close to them, I really see a difficult 

time on the part of people whose history we can read, that goes 

back thousands of years, accepting our civil law as a model. Will 

we have to accept something less than our western model? That is 

my question. 

33

Ms. ROCCA. Well, it is going to be a constitution that is put together by the Afghans for the Afghans, so I am sure it will not be 

an exact model or exact duplicate of ours, nor should it be because 

it has got to conform to——

Ms. WATSON. Islamic law. 

Ms. ROCCA [continuing]. Local customs and traditions as well 

Ms. WATSON. Well, maybe I should clarify my question. if the 

people who sit on the bench are educated in Islamic law, are we 

going to have to reeducate them in civil law? Is this our goal? 

I am just trying to find out what is our plan. You are know, 

where are we going with it? Are we going to turn it over to them, 

and say, we have done our part? I just want to know where we are 

going. 

Mr. CRANER. I hesitate to use other examples again, but there 

are countries that——

Ms. WATSON. No, no. 

Mr. CRANER [continuing]. Operate under Islamic law where 

international human right are protected 

Ms. WATSON. No, I am not going to let you skirt around this. 

What are we looking for in Afghanistan? 

Mr. CRANER. We are looking for a country that has Islamic law 

where international human rights are recognized, and those rights 

exist for all the citizens. The two are not contradictory. They need 

not be contradictory 

Ms. WATSON. And are we going——

Mr. JANKLOW [presiding]. The lady’s time has expired for over a 

minute, so go ahead if you have one final question. 

Ms. WATSON. Just one last question. Thank you for indulging me, 

because this is——

Mr. JANKLOW. Go ahead. 

Ms. WATSON [continuing]. Very important for us to think this 

through. You know, if we really want to see that we leave them 

with a constitution, you know, are they going to draft it? Are we 

going to say, this is unacceptable? I mean, what is our role going 

to be and what is our goal? 

Mr. CRANER. Again, our goal has been to have international 

human rights accepted. You could have interpretations of Islam as 

the Taliban did where international human rights would not be 

protected. You could have interpretations where there are the latter is our goal. 

Ms. WATSON. Thank you. I will stop there. 

Mr. JANKLOW. Mr. Rohrabacher. 

Mr. ROHRABACHER. Thank you very much. 

Who can tell me, where does it say in the constitution that the 

women have a right to vote? Maybe you can read the section to me 

that says women have the right to vote. 

Ms. ROCCA. It does not state it explicitly. It talks about citizens 

having the right to vote. 

Mr. ROHRABACHER. Right. Thinking maybe that we should be explicit about that considering the history of the country? 

Mr. CRANER. It is clear that women and men are citizens of Afghanistan, and citizens have the right to vote. 

Mr. ROHRABACHER. Considering the history of the country, you 

do not think that we should demand a little bit more specificity 

34

simply because they have been through this horror story of the 

Taliban, and radical Islam, which treated women as chattel? 

Ms. ROCCA. Congressman, there is a presidential decree that 

states specifically that women are equal to men; that women are 

citizens and have the right to vote. 

Mr. ROHRABACHER. Well, I would suggest, if we are trying to give 

them some guidance, that we might want to insist that it specifically state in the constitution that women have the right to vote. 

Okay, just a thought, you know. 

Ms. ROCCA. Okay. 

Mr. ROHRABACHER. Okay? 

Ms. ROCCA. Could I rephrase what I said? Excuse me. I think I 

misspoke. I think I said that women are equal to men. That is not 

what the decree says. It says that women have the right to vote. 

I just want to correct the record. Excuse me. 

Mr. ROHRABACHER. All right. How does this constitution, for example, in talking about things like women, specifically the right to 

vote, other things, how does it compare with the 1973 constitution 

that was kicked out when the King was overthrown? That is the 

last constitution I know about in Afghanistan. 

Do you have a comparison at all? 

Mr. CRANER. I think it compares favorably with both the 1973 

and the 1964 constitutions. If you put them side by side and go article by article, it is definitely an improvement. 

Mr. ROHRABACHER. Okay. In terms of the 1973 constitution, of 

course, provided some role for the royal family. Is there anything 

for the royal family in this constitution? 

Ms. ROCCA. There is a clause that says that the current King remains the father of the nation. 

Mr. ROHRABACHER. The current King. 

Ms. ROCCA. The current King. 

Mr. ROHRABACHER. Right. 

Ms. ROCCA. It does not——

Mr. ROHRABACHER. So after the current——

Ms. ROCCA. And then it moves to a democracy. 

Mr. ROHRABACHER [continuing]. Who is, you know, 90 years 

old——

Ms. ROCCA. Right. 

Mr. ROHRABACHER [continuing]. Disappears, which everybody 

has told me was going to be, you know, within a few days, for the 

last 20 years the King is going to die within the next 2 or 3 days, 

I have been told that for 20 years, but when he passes on, then this 

institution that is created stability in Afghanistan and what most 

of us would think is a positive stability, at least for half a century, 

that institution will disappear, right? 

Ms. ROCCA. According to the current draft. 

Mr. ROHRABACHER. Right. Okay. We did not have any influence 

on that at all? 

Ms. ROCCA. We have been working very closely, as the UN, to get 

as good a possible draft as possible and something that represents 

the desires of the Afghan people. 

Mr. ROHRABACHER. You know, I do not want to, you know, throw 

my weight around in terms of understanding what is going on in 

Afghanistan. I have studied the issue a little bit. And it is my readVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
35

ing that the royal family and the King has more respect than any 

other political institution in Afghanistan. Am I incorrect in that? 

Ms. ROCCA. The draft as it stands is the result of review by—

extensive review throughout the country with ideas and inputs that 

came from over half a million people in writing alone, not to mention those that they got verbally. 

Mr. ROHRABACHER. Sure, but somebody has got to in the end say, 

well, we are going to put this in, we are going to take this out, and 

you do not think that people from the outside were pressuring anybody to leave the royal family out of the constitution? 

Ms. ROCCA. No, I cannot comment. 

Mr. ROHRABACHER. Let me just again say that I have studied the 

issue a little bit, and I am very disappointed that the one institution in Afghanistan society that has maintained the respect of almost all factions and all of these ethnic groups, you know, we have 

a lot of things that tie us together as Americans, commitments to 

various freedoms and rights, and concepts that have been passed 

on to us, but in Afghanistan, really outside of Islam the only other 

factor that I have seen that has united the Afghan people has been 

the royal family and this King. And he seems to be totally out of 

the equation. 

And Madam Chairman, let me note that for those of us who have 

been watching the policy of the United States State Department for 

the last 10 years, that this is no surprise, and I would hope that 

this reflects what the Afghan people want, which I doubt, rather 

than what the whims are of some people in our own State Department. And maybe you can—you are shaking your head. Please correct me. 

Mr. CRANER. We have addressed a number of issues with different members of the government and with different members of 

the group writing this constitution, and trying to take down the 

King has never been one of them. 

Mr. ROHRABACHER. Well, I would hope that the royal family continues to play a role even if they are not officially endowed by this 

constitution, and I would think that the royal family today has actually more support than does the government of Mr. Karzai in 

various parts of the country, but I am just guesstimating that. 

One last thing about Turkish troops. The State Department or 

somebody——

Ms. ROS-LEHTINEN [presiding]. Could you make that brief there? 

Mr. ROHRABACHER. Yes, I will. Somebody was——

Ms. ROS-LEHTINEN. We do not have time. 

Mr. ROHRABACHER [continuing]. Talking about sending Turkish 

troops to Iraq, which has got to be the most hair-brained idea I 

have never heard of in my life. I would think, just to note that it 

is my understanding, and actually having talked to people that actually—Turks are a lot more respected in Afghanistan than they 

are in Iraq. 

Do you think maybe it might be a good idea to ask some of the 

Turks to come over and help stabilize the situation in Afghanistan 

rather than sending them to Iraq where they are hated? I will 

leave it as a question. 

Ms. ROCCA. As far as I know, we have not asked them. 

Mr. ROHRABACHER. Okay, thank you. 

36

Ms. ROS-LEHTINEN. We will leave that one for tomorrow’s Iraq 

hearing. 

Mr. ROHRABACHER. Okay, thank you very much. 

Ms. ROS-LEHTINEN. Thank you. We thank all of the Ambassadors 

for being here today. Thank you very much; wonderful panelists, 

great questions from our Committee Members as well, and thank 

you so much. We look forward to working with each and everyone 

of you as this movement toward democracy and a constitutional 

form of government take place in Afghanistan. We wish all of you 

well, and the people of Afghanistan as well. 

I would now like to call upon our second panel. Our first witness 

appearing on behalf of the National Endowment for Democracy is 

Ms. Barbara Haig. Ms. Haig is NED’s Vice President for Programs, 

Planning and Evaluation, and has worked for NED since 1985. Ms. 

Haig and her staff are responsible for the program development, 

monitoring and evaluation of the endowment’s international grants 

program which covers six regions of the world. From 1981 to 1985, 

she was Special Assistant to the Associate Director of Programs, 

and then to Director of the United States Information Agency. 

Thank you, Ms. Haig, for being with us today. 

Next, we will hear from Ms. Marian Nawabi, Advisor to the Constitutional Drafting Commission of Afghanistan, and a litigation 

associate in town. Ms. Nawabi was selected by the United Nations 

to serve as a legal advisor for the legal affairs working group of the 

Afghanistan Reconstruction Project. She currently serves as the coordinating attorney for the Afghanistan transitional commercial 

law project. She has participated in conferences at the U.S. headquarters and in Germany on women’s rights in the new constitution. 

Thank you so much for being with us, Marian. 

And our next witness then will be Mr. T. Kumar. Mr. Kumar is 

the Advocacy Director for Asia and the Pacific for Amnesty International. Welcome back. He has served as the human rights monitor throughout Asia. Mr. Kumar was imprisoned for 5 years in Sri 

Lanka for his human rights activities, and while in prison he studied the law and later became an attorney. Welcome again. 

And we are pleased to have our good friend Mr. Mark Schneider, 

Senior Vice President of the International Crisis Group, and head 

of the Washington office. Mr. Schneider was also the past Director 

of the Peace Corps, and prior to his leadership of the Peace Corps, 

he also served as the Assistant Administrator of USAID. 

Thank you, Mark, for being here. It is good to have such a distinguished panel before the Committee on International Relations. We 

welcome you all, and we look forward to hearing your testimony. 

And again, your full text will be made a part of the record, and we 

hope that you limit your opening statements to more than 5 minutes following the wonderful example of the panel before you. 

Thank you, Ms. Haig. 

STATEMENT OF BARBARA HAIG, VICE PRESIDENT, PROGRAMS, PLANNING AND EVALUATION, NATIONAL ENDOWMENT FOR DEMOCRACY 

Ms. HAIG. Thank you, Madam Chairman, Members of the two 

Subcommittees sponsoring this hearing. 

37

I welcome the opportunity to be here today to comment on democratization efforts in Afghanistan. In the interest of time, I will 

offer brief remarks that will reflect what is at the heart of my written statement. 

There are two fundamental elements to the United States and 

international involvement in Afghanistan. One is to eliminate the 

threat of the Taliban and al-Qaeda. The second is to create an enabling environment in which Afghans, with the help of the international community, can pursue and succeed in the difficult task 

of building a secure and stable nation. 

The second element is the one that most relates to the business 

of the National Endowment for Democracy. There are today some 

13 or so multifaceted programs being funded by NED to help advance that goal. But what I most want to emphasize today is the 

degree to which these two elements are interdependent. 

It is now nearly 2 years after the Bonn Agreement was brokered, 

and with national elections only 7 months away, much of Afghanistan is still dominated by warlords. In addition, remnants of the 

former Taliban regime, as well as al-Qaeda, haunt the southern 

provinces. Terrorism in Afghanistan is linked to drug production 

and trafficking, which also pays for the personal militias of local 

commanders. 

Thus, while the details of organizing and educating for human 

rights and free elections move forward, we must not get lost in the 

weeds; although I very much think that it is in the grass roots 

where much can be accomplished, and I can speak to more of this 

in the question period. 

Distinguished Members of the Committee, the questions I think 

we came here to examine—such as are the Afghans prepared to 

participate in a constitutional Loya Jirga? Can there be free and 

fair national elections by June? Can Bonn succeed in helping set 

Afghanistan on the road to development and democratization?—

these can only be answered in the affirmative if there is greater security. And if the answer is no, what are the alternatives? 

I think President Karzai is very aware that his mandate and 

that of his government runs out on June 22nd. In addition, the government as currently formed is really constantly working against 

itself and can take only modest steps to improve security, which 

are often reversed by competing elements within the government’s 

own ranks. 

This cannot be changed in any fundamental way without elections. The current draft of the constitution calls for holding elections for President and Vice President in June, with elections for 

the legislature to come later. In my view, this is the only way Afghanistan will be able to put into place the necessary building 

blocks for free and fair elections at all levels. And whatever final 

version of the constitution emerges will really be meaningless if 

there are no institutions capable or willing to enforce and implement it. 

But if sufficient security is established, I have little doubt that 

the Afghan people will carry through on the rest. Through our programs we have learned over the past 19 years how really durable, 

innovative and dogged Afghans can be. And even as outside organizations refrain from carrying out programs in areas where security 

38

risks are high, or roads too dangerous, for the Afghans with a mission this is their country and they find a way. 

Most Afghans are really quite moderate and yearn for peace and 

security and a chance to live without fear. They are willing to work 

for that. 

So what can be done? In order to improve conditions for activities 

related to both the constitutional Loya Jirga and national elections, 

the international community must commit greater security forces 

and pair them with the fledgling Afghan National Army and Police. 

The PRTs from the coalition forces and NATO-led ISAF, both 

should be utilized for this purpose, in coordination with the U.N. 

and the Afghan Election Commission. 

And on an urgent basis, the United States should deploy PRTs 

in Kandahar and Uruzgan, while the Europeans could take over 

from all American PRTs in the north. 

The United States and the United Nations should insist that all 

parts of the Pakistani government immediately cut off all forms of 

support to Taliban and al-Qaeda leaders who are operating from 

Pakistan. 

Drug trafficking is an enormous source of support for warlords 

and terrorists, undermining all aspects of economic and political 

development. Immediate and well publicized efforts to shut down 

a few of the known drug processing labs would send a strong message to their operators and sponsors, and would serve as a great 

encouragement for the Afghan people. 

There are, of course, great needs for increased numbers of international observers during all phases of the registration, campaigning and voting periods, as well as training, production and 

dissemination of voter information, rules about political parties, 

and much more. These are all things that international donors and 

their grantees are planning for and working on, but the recommendations listed above are, in my view, among the most critical things that must happen if the remainder of the Bonn Agreement is to be successfully implemented. 

Madam Chairman and Members of the Committee, I thank you 

for your time, and look forward to any questions. 

[The prepared statement of Ms. Haig follows:]

PREPARED STATEMENT OF BARBARA HAIG, VICE PRESIDENT, PROGRAMS, PLANNING

AND EVALUATION, NATIONAL ENDOWMENT FOR DEMOCRACY

Madam Chairman and members of the two subcommittees sponsoring this joint 

hearing, 

I welcome the opportunity to be here today to comment on democratization efforts 

in Afghanistan. 

As many of you know, the National Endowment for Democracy (NED) does not 

fund governmental institutions, but aims to help build the social and institutional 

capacity of citizens to contribute to the political life of the country. Most Endowment 

support focuses on countries where the greatest needs are 1) the establishment or 

reform of institutions of governance to make them more accountable and responsive 

to the citizens they are meant to serve; and 2) the fostering of ideas, values and 

habits that will help ensure that free market democracy can emerge and endure. 

These are ambitious objectives, and there is never any guarantee that any amount 

of effort on our part, or that of others, will succeed. Nonetheless, it is the mission 

of the Endowment to reach out to moderate, democratically inclined forces, no matter how marginalized they may be, and help to broaden their base and strengthen 

their prospects in the face of tyranny, repression, and violent conflict. 

Before discussing the implementation of the Bonn Agreement, let me offer a few 

comments about the environment in which the Agreement exists. The Bonn AgreeVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
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ment was intended to put Afghanistan on the path to stability by mapping out a 

political process that calls for the drafting and ratification of a new constitution by 

a national Constitutional Loya Jirga by October 2003; promulgation of political 

party and election laws; organization of a census and voter registration, and finally, 

democratic elections by June 2004. Now, nearly two years since the Agreement was 

brokered, and with national elections only seven months away, much of Afghanistan 

is still dominated by regional warlords. Armed remnants of the former Taliban regime, as well as al-Qaeda, haunt the southern provinces, and economic reconstruction outside of Kabul is barely visible to the general public. 

The power of the warlords, who still command their own heavily armed militias, 

was greatly strengthened by their role in the 2001 war against al-Qaeda. Ever since 

Bonn, they have succeeded in sidelining both the people and the central government, in large part by putting themselves ostensibly at the forefront of the 

antiterrorism campaign and the reconstruction process. In reality, these warlords 

and their private armies have taken the country and the state hostage and are putting Afghanistan’s future in jeopardy. Their gunmen are intimidating journalists 

and political opponents as well as robbing, detaining, and assaulting ordinary Afghans with impunity. 

At the same time, coalition efforts conducted in cooperation with regional leaders 

have not succeeded in eliminating the Taliban and al-Qaeda, especially in the south 

and east of the country. The Taliban and al Qaeda are reemerging as the biggest 

threats to overall security in the country. Terrorism is linked with drug trafficking, 

which also pays for the personal militias of local commanders. Furthermore, the 

lack of security in places such as Kandahar has ominous implications for the rest 

of Afghanistan since it is the heartland of the majority Pashtun ethnic group and 

tribal confederation that ruled Afghanistan for the past three centuries, and is 

where the Taliban began its rise to power in the late 1990s. Progress simply cannot 

be made in the rest of the country if the Pashtun south is lawless, which would 

mean more Taliban and al-Qaeda. 

IMPLEMENTATION OF BONN

Madam Chairman, 

You have likely heard already about the delays which have occurred in the constitutional consultative process and the unclear and imperfect manner in which the 

first phase was conducted. 

I was in Afghanistan in the second half of June and early July as the consultations were underway and had the opportunity to discuss with some participants 

from both Kabul and Kandahar their experiences and views of the sessions. Although a network of Afghan civil society organizations was formed in May under 

the leadership of the international NGO Swisspeace and the Constitutional Secretariat to support nationwide public education on the constitutional process, it was 

clear that many of those who attended the consultations mistakenly expected to receive a draft of the constitution in the first round, and to have some discussion of 

the issues that need to be considered. Instead, they listened to small presentations 

on topics such as women’s rights, and were handed questionnaires to fill out and 

return. The reactions ranged from cynical and suspicious (mostly in Kabul), to simply confused. Nonetheless, as planned, many participants, especially women’s 

groups, teachers and NGOs did reach out to others and formed groups to further 

distribute and jointly complete the confusing questionnaire. I have heard reports 

that representatives of the Constitutional Review Commission attended somewhere 

between 555 and 800 public meetings, at which a cumulative total of 35,503 people 

were present, and distributed 484,450 questionnaires. 

Next, the new political parties law bars parties that have links to armed groups 

from being registered. Some of the larger armed factions might easily form front 

parties that claim no links to their sponsors, but at least the marker has been laid 

down. The successful implementation of this law will be critical to a credible election 

process and Afghanistan’s future. Another important feature of the law is the requirement for parties to disclose their financing. This will be nearly impossible to 

enforce, but again, the marker is laid. 

We also know that the Constitutional Loya Jirga was delayed two months, until 

December 10. While the delay is good in terms of the constitutional process, it complicates even further what is already a nearly impossible task of organizing and implementing national elections by June 2004. As far as I know, the security situation 

has made contemplating a national census impossible for now. Thus, I expect that 

voter registration will go forward on the basis of a pre-census. The decree on voter 

registration was issued, but the lack of security has pushed back deployment of registration teams to at least December 1. 

40

The Constitutional Loya Jirga (CLJ) Delegate Voter Registration and Elections

were scheduled to occur to determine 450 delegates to the Loya Jirga, with another 

fifty to be appointed by President Karzai. Registration for CLJ delegate elections 

began September 21 and was completed on November 5. Elections for the Provincial 

Delegates of the 32 provinces will take place in the 8 regional capitals (Kabul, 

Bamyan, Mazar-I Sharif, Kunduz, Kandahar, Gardez, and Jalalabad). There are 42 

seats for Afghan refugees, internally displaced persons and minorities, and 15 percent must be women. As of November 9, UNAMA reported that all electors had been 

chosen, and they will elect the candidates in the coming weeks. Sixty-four delegates 

are being elected by and for women among all 32 provinces. Two women are to be 

elected from each province; 15 provincial elections for women were complete as of 

November 9. 

Although preparations for the CLJ are progressing, there are likely problems still 

ahead. Human Rights Watch has already warned in an October 29 letter to President Karzai, that ‘‘a climate of fear exists in every region of the country, and many 

representatives and former loya jirga participants are afraid to be involved in the 

forthcoming constitutional loya jirga.’’ We are also just hearing the tragic news of 

the murder of a UNHCR refugee worker in Ghazni 

Distinguished members of the Committee, 

Afghanistan is quickly approaching what may be the last chance it has for many, 

many years to establish enough stability for political and economic development to 

be able to proceed. The questions we came here today to examine—Are the Afghans 

ready to participate in the Constitutional Loya Jirga? Can there be reasonably free 

and fair elections by June? Can Bonn succeed and help set Afghanistan on the road 

to development and democratization?—can only be answered in the affirmative if 

there is greater security. 

President Karzai is very aware that his mandate, and that of his government, 

runs out on June 22. Furthermore, the government as currently formed is constantly working against itself and can make only modest steps to improve security, 

which are often rapidly reversed by elements within its own ranks. This cannot be 

changed in any fundamental way without elections. 

The current draft of the constitution calls for holding an initial election for President and Vice President in June, with elections for the legislature to come later, but 

still within 2004. In my view, this is the only way Afghanistan will be able to put 

into place the necessary building blocks for free and fair elections at all levels. 

While it will, and should, be the subject of debate until a final version is passed, 

the draft constitution is an amazing document to have come out of Afghanistan only 

two years after the end of the national nightmare that culminated with Taliban 

rule. But whatever final version emerges will be meaningless if there are no institutions capable or willing to enforce and implement it. 

And yet, if sufficient security is established, I have little doubt that the Afghan 

people will carry through on the rest. Through our programs, we have learned how 

durable, innovative, and dogged Afghans can be. Even as outside organizations refrain from carrying out programs in areas where security risks are too high, or that 

require traveling dangerous roads, for Afghans with a mission, this is their country, 

and they find a way. Most Afghans are actually quite moderate, and yearn for peace 

and security and a chance to live without fear. They are willing to work for that. 

WHAT IS BEING DONE IN CIVIL SOCIETY?

NED has been involved in supporting programs for Afghanistan since 1984. As 

a result, as soon as the war of 2001 settled down and Bonn was negotiated, and 

with the help of many of our longstanding Afghan friends, our two party institutes, 

IRI and NDI, traveled to the region and into Afghanistan to begin planning their 

programs. A third core grantee of NED, the Center for International Enterprise 

(CIPE), also started early to develop and implement programs to help organize the 

business community to strengthen its leadership role and to build greater awareness 

within society of market and democratic values. 

A range of Afghan groups is also receiving NED funding with programs that are 

reaching a cross-section of society—including teachers, local councils of elders, and 

religious leaders—with human rights, women’s rights and, basic democracy education; as well as training in leadership methods, conflict mediation, and democratic 

processes. Much of this work is being carried out in the very heart of village communities, with some programs using respected figures local traditional structures to 

serve, in effect, as local level ‘‘democracy multipliers.’’

Through NDI, newly emerging political groupings are being exposed to the arts 

of coalition-building, platform development, and organizing. IRI’s partners are providing professional reporting on ongoing political and reconstruction efforts throughVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
41

out the country through the Erada newspaper, and a coordination bureau for Afghan NGOs has drawn in 275 NGOs which link thousands of Afghans to the government, the international community, and each other. 

Nearly all NED grantees working in Afghanistan are implementing community 

outreach, training and advocacy programs , and are producing informational materials on the substance and procedures of each phase of the Bonn Agreement. When 

I visited Afghanistan last June and July, IRI, NDI, and CIPE were still able to operate only on the funding provided by NED, and the International Foundation for 

Electoral Systems, which has no NED funding, was functioning at a minimal level 

with funding from the Canadian government. AID funds began to flow to those organizations in late summer. 

I could go on highlighting program activities, but I must take a moment to put 

such activities into context. In the best of times, these programs have reached into 

probably one-half of the territory of Afghanistan, leaving swaths of central and 

southeastern Afghanistan untouched. But being present in a province may only 

mean a few small workshops in the capital of a province and a few villages. All of 

our grantees and their partners have had to postpone or even cancel office openings, 

hold training sessions, or seminars because of security or because they could not get 

the approval of local officials, often the governor/warlord himself, which is absolutely necessary in Afghanistan. While some of the Afghan groups conducting programs are surprisingly skilled and sophisticated in the ways they plan, organize, 

and adapt their programs and organizations, some are nascent, mission-driven 

groups whose efforts show their lack of experience and training, and are unlikely 

to have great impact. However, in Afghanistan, even the weakest groups can help 

serve simply to transmit information and identify good people, who might otherwise 

be completely out of touch with the democratization process. A number of the groups 

we support make important internal decisions by voting, including deciding who will 

go to represent their interests at important meetings, or before key government officials. But most important, they are working with elements at the local level who 

wish to help restore security in their locales; fight corruption, drug production and 

trafficking and misuse of reconstruction resources; and serve as avenues through 

which citizen rights may be protected and local views are represented in political 

decision-making processes. 

WHAT CAN BE DONE?

• In order to improve conditions for activities related to both the Constitutional 

Loya Jirga and national elections, the international community must commit 

greater security forces and pair them with the National Army and Police. 

PRTs from the Coalition Forces and NATO-led ISAF both should be utilized 

for this purpose, in coordination with the UN and the Afghan Election Commission.

• On an urgent basis, the United States should deploy PRTs in Kandahar and 

Uruzgan, while the Europeans should take over from all American PRTs in 

the north.

• The United States and the United Nations should insist that all parts of the 

Pakistani government immediately cut off all forms of support to Taliban and 

al Qaeda leaders who are operating from Pakistan.

• Drug trafficking is an enormous source of support for warlords and terrorists, 

who are undermining all aspects of economic and political development. Immediate and well publicized efforts to shut down a few of the known drug 

processing labs would send a strong message to their operators and sponsors, 

and would serve as a great encouragement for the Afghan people.

There are, of course, great needs for increased numbers of international observers 

during all phases of the registration, campaigning and voting periods, as well as 

training, production and dissemination of voter information, rules about political 

parties, and much more. These are all things that international donors, including 

USAID, the United Nations Mission to Afghanistan, IFES, NDI, IRI, NED and its 

grantees are all planning for and working on, but the recommendations listed above 

are, in my view, among the most critical things that must happen of the remainder 

of the Bonn Agreement is to be successfully implemented. 

Madam Chairman and Members of the Committee, I thank you for your time, and 

look forward to any questions you may have. I have available some printed materials on NED programs.

Ms. ROS-LEHTINEN. Thank you so much. 

Now I would like to have our next panelist, Ms. Nawabi. 

42

STATEMENT OF MARIAM A. NAWABI, ESQ., ADVISOR TO THE 

CONSTITUTIONAL DRAFTING COMMISSION OF AFGHANISTAN, ASSOCIATE, DECHERT, LLP 

Ms. NAWABI. Thank you, Madam Chairwoman and Members of 

this Subcommittee. 

My name is Marian Nawabi, and I am here to testify today regarding the status of political and civic participation of women in 

Afghanistan as the country approaches historic constitutional deliberations. I will represent a summary of my views. These represent 

my personal views and not those of my firm. 

Today, we are seeing two very different images of Afghan women 

2 years after the fall of the Taliban. The first images of women returning to school and work, serving as ministers and commissioners, and having greater freedom than they did earlier. 

The second image is of women still wearing the Burkah due to 

fear of personal security, women being harassed and intimidated, 

women imprisoned for alleged crimes such as running away from 

abusive homes, without any representation or due process. 

So how do we reconcile these two very different images? The answer is that both are realities today in Afghanistan, but unfortunately, the second image is still more prevalent than the first. 

From the post 2 years in Afghanistan, we have learned that 

gains made for women’s rights are still only being enjoyed by a 

very small percentage of the population, and the majority of Afghan women still live under terrible conditions. 

As we know, a successful democracy cannot be built without the 

active participation of all its members, including women. In Afghanistan, due to the loss of thousands of men, women now make 

up approximately 60 percent of households, and many of them are 

widows. Their participation is thus even more critical to democratization efforts. 

However, Afghan women continue to face extraordinary obstacles 

to social and economic development. In order to increase their political participation, the environment in which they live must be dramatically improved. Afghan women are looking for basic rights, and 

to have their basic needs met first, especially in the areas of health 

care, education, and economic opportunities. 

The baseline in Afghanistan right now is so low that ignoring 

these basic needs will only lead, I believe, to a failure to realize any 

gains in their political participation. Also, the needs of Afghan 

women cannot be seen uniformly. There is a difference between the 

needs of the rural women and the urban women, as well as literate 

versus illiterate women, and programs to be designed to address 

these specific needs. 

The program for the reconstruction of Afghanistan as a whole 

must be comprehensive and long term if there are to be advancements in women’s rights. The reconstruction activities that have 

taken place so far have not effectively reached the rural areas. 

Rural Afghanistan is the backbone of the country, and economic 

underdevelopment and lack of education there has hindered advancement. 

It is crucial to recognize that security, education, economic opportunities, and health care, again, are intertwined with the prospects 

for women’s political participation. It is sad, though, to see that the 

43

hopes of many women have diminished 2 years after the fall of the 

Taliban. To date, many of the changes have been symbolic, but not 

substantive. 

Girls can now attend schools, but there is a lack of teachers, supplies, and textbooks. Women are now allowed to work, but they 

lack skills and economic opportunities. Women still face restrictions 

in their every day life, and in some areas they are still being 

bartered to settle tribal disputed and to earn money for their families. 

Given all these issues, what is the status right now of their civil 

and civic participation? Before the Soviet invasion, Afghan women 

participated in public life, but it was mainly the urbanized women. 

During the Soviet occupation, women inside the country and in refugee camps became active in humanitarian response activities, and 

now that has given them some skills to participate in democratic 

institutions. 

However, most of the Afghan women NGOs that I know of still 

are not receiving direct adequate funding to fund their activities, 

and are not able to have a big impact on women’s economic development. 

Overall, there is representation of women in civil society, but 

there still are not many women leaders represented in these organizations. 

And what is happening with regards to political participation? 

We have heard about some of the positive achievements that have 

been realized in the past year, including women in the government, 

in the Loya Jirga and the commissions, but although achievements 

are made at these higher governmental offices, a lot of times due 

to international pressure, the majority of Afghan women still continue to be marginalized. 

And what can be done to address this? Again, we come back to 

the issues of security, health care and education, but other 

proactive measures could be taken that could assist in this effort. 

First is participation and voting in the election process. The current climate of intimidation and harassment reported by women’s 

organizations shows that there are real threats for women to actually be involved in the process. Special attention also needs to be 

focused on women in remote and rural areas to actually go out and 

reach out tot them and make sure they are registered, and that 

they understand the process. 

As preparations are underway for this constitutional Loya Jirga, 

I think there is some valuable learning lessons from the Loya Jirga 

that took place last year. During that process there was a quota 

that was mandated for the number of women delegates, and 

women who participated were actually some of the most vocal and 

important part of that process. One woman even ran for President, 

and she came in second ahead of two men. 

However, the learning lessons were also that the women who actually did speak out against the inclusion of human rights violators 

at the proceedings did not lead to any change, and they were left 

to fend for their own security after the proceedings. 

Many participants, both men and women, were harassed, attacked or even there were few reports of people being killed after 

44

those proceedings due to voicing their opinion. Open debate cannot 

take place in this type of environment. 

The requirement that two women from Afghanistan’s 32 provinces be elected to the constitutional Loya Jirga is a step in the 

right direction, but it is only a beginning. This is illustrated by the 

fact that, although women have been chosen at women-only elections throughout the country, election organizers continue to be 

threatened and some women are not even showing up for the proceedings. 

An important aspect related to women’s political and civil participation that we have discussed is the role of Islam law. Due to the 

use of Islam law to wrongly hinder women’s rights in the past, I 

believe that progressive Islamic education really needs to be supported in Afghanistan, otherwise we are leaving a vacuum that can 

only be filled by the extremists. 

Modern Islamic leaders and teachers from within Afghanistan 

and from other countries can be brought to Afghanistan to discuss 

women’s rights issues, not only with women, but also with the clergy who play such an important role in the country’s judiciary and 

political system. 

A topic of great interest is the new constitution and what rights 

it will provide to women. Many Afghans hope that the constitution 

will provide the framework for national reconciliation and progress. 

Previous panels spoke about some of the progress that was made 

in this new constitution, but as past Afghan history has proven, it 

is not the language of the constitution that will drive the reforms 

and implementation, but it is the capacity and willingness of other 

institutions such as the judiciary, to support and guarantee those 

rights, what public support those rights get, and backing from the 

clergy who again wield immense power in many communities. 

Even if Afghanistan were to pass a perfect constitution, it would 

be meaningless because at this point the institutions and support 

system that are needed to implement the constitution have not 

been built up since the Bonn Agreement. 

Currently, women have little recourse to justice because of social 

barriers, and even when women are able to approach the police or 

the courts, they face extreme discrimination. 

So unless attention is paid to rebuilding the judicial system as 

a whole, these problems will worsen as the gap between the law 

and implementation widens. It should be noted that Afghanistan 

actually was a signatory to the convention on the political participation of women in 1953, so they did have the right to vote, and 

there are many other conventions and laws that existed, so that we 

can see through time that it wasn’t the laws that made the difference, but it was the social conditions that existed and the institutions that made the difference. 

Thank you. 

[The prepared statement of Ms. Nawabi follows:]

45

1 Report of the Security Council Mission to Afghanistan, 31 October to 7 November 2003, S/

2003/1074. 

PREPARED STATEMENT OF MARIAM A. NAWABI, ESQ., ADVISOR TO THE CONSTITUTIONAL DRAFTING COMMISSION OF AFGHANISTAN, ASSOCIATE, DECHERT, LLP 

WOMEN’S PARTICIPATION IN CIVIL SOCIETY AND THE POLITICAL SPHERE IN

AFGHANISTAN

A successful democracy cannot exist without the active participation of all its 

members, including women. Women are key players in bringing their communities 

together and in nation building. Women are powerful peace builders, as recognized 

by UN Resolution 1325 signed by the U.S. 

Gender inequality is linked to poverty, insecurity, and lack of education. In Afghanistan, due to the loss of thousands of men to conflict, women now make up approximately 60% of the population, many of whom are heads of households and widows. Their participation is thus even more critical to democratization efforts. 

However, Afghan women continue to face extraordinary obstacles to social and 

economic development. In order to increase women’s political participation in Afghanistan, the environment in which they live must be dramatically improved. Afghan women are looking for basic rights and to have their basic needs met, especially in the areas of education, health care, and economic opportunities. Increasing 

women’s access to basic services is key. Reconstruction efforts in the areas of water 

and energy resources, education and health care are essentially gender issues because women’s lives are most affected by the presence or absence of these essential 

services. 

The baseline in Afghanistan currently is so low that ignoring the basic needs of 

Afghan women will lead to failure to realize any sustainable gains in the political 

participation of women. However, the needs of Afghan women cannot be seen uniformly. The challenges that urban women face can be very different than those of 

rural women and different approaches need to be taken to increase political participation in these distinct areas. In addition, the needs of literate women to become 

more politically involved are very different than those of illiterate women. Thus, 

programs designed to increase the participation of Afghan women in the political 

process must address the needs of each of these segments of society in order to be 

effective. 

It is thus crucial to recognize that security, education, economic opportunities and 

health care are intertwined with the prospects for women’s civic and political participation. It is sad, though, to see that the hopes of many women have diminished 

two years after the fall of the Taliban. To date, many changes in their post-Taliban 

world have been more symbolic than substantive. Girls can now attend school but 

lack appropriate facilities, properly trained teachers, textbooks, and other supplies. 

Women are now allowed to work, but most lack marketable skills and job opportunities. Women still face restrictions in their everyday life. In some areas, women are 

bartered to settle tribal disputes or purely to earn money for their families or first 

husbands. 

A recent UN Security Council mission to Afghanistan reported that terrorism, 

drug-related crime, and factional fighting threaten rebuilding efforts. The report 

noted frequent death threats against women’s rights activists and a high rate of suicide among women. The report states that lack of security had ‘‘affected the entire 

Afghan peace process.’’ 1 This would jeopardize gains made in the country over the 

past two years and the most vulnerable victims again would be women and children. 

I. Historic Context 

In order to understand the present challenges facing the inclusion of Afghan 

women in the political process and democratization, one must understand the context and history from which these challenges are derived. 

Many of the women’s rights reforms that took place in Afghanistan throughout 

the 20th century resulted from a top-down effort to modernize Afghanistan rather 

than a real grassroots women’s movement. Because of a connection between emancipation and modernization, the movement toward full female emancipation has been 

hindered by the views that associate emancipation with foreign interference. This 

in turn mobilizes religious and community leaders against reform efforts. That is 

why reconstruction efforts that benefit the whole nation are important to show that 

modernity is not being imposed and is not meant to change Afghan culture or values. Men must be included and feel part of that process. 

In addition to the origination of reform efforts, the urban-rural divide must also 

be considered. Rural Afghanistan is the root of tribal powers that have frequently 

46

2 Ahmed-Ghosh, Huma. A History of Women in Afghanistan: Lessons Learnt for the Future. 

Journal of International Women’s Studies, Vol. 4, #3, May 2003. 3 Id. 

4 CARE and Center for International Cooperation, Afghanistan Policy Brief: Good Intentions 

Will Not Pave the Road to Peace, Sept. 15, 2003. 

opposed Kabul-based modernization efforts.2 Any legislation enhancing women’s status by separating her from her family and community historically has not only met 

with resistance from tribal leaders, but also led to the overthrow of the political regimes sponsoring such legislation.3 Thus, empowering women must be done in the 

context of the family and community. 

Before the Soviet invasion, Afghan women participated in public life, but the 

number of these women was relatively small and they were mostly from urban backgrounds. During the Soviet occupation of Afghanistan (1979–89), Afghan women inside the country and in refugee settings became active in humanitarian response activities. As a result of this involvement, more and more Afghan women’s groups 

began to emerge, particularly in Pakistan, in the early 1990s. Numerous womenled non-governmental organizations (NGOs) operated across the Afghan-Pakistan 

border through bases in Pakistan. Women gained expertise through working in 

United Nations agencies and international NGOs as administrative staff and as implementers of assistance programs. This has provided many women with new skills 

and opportunities, who can now serve as role models and teachers for other women. 

Most importantly, due to the past use of Islamic law to hinder women’s rights in 

Afghanistan, progressive Islamic education must be supported. Otherwise, one is 

leaving a vacuum to be filled only by extremists. Moderate Islamic leaders and 

teachers from within Afghanistan and from other countries should be invited to discuss women’s rights and other issues and to exchange ideas not only with Afghan 

women, but also with the clergy who play such a powerful role in the country’s judiciary and political system. 

II. Importance of Reconstruction of Afghanistan to Women’s Advancement 

For women’s status to improve in Afghanistan, the area that needs immediate attention is rural reconstruction. Rural Afghanistan makes up the majority of the 

country and economic underdevelopment and lack of information and education has 

hindered advancement in these areas. Thus, education, skill training and employment of women in rural areas, coupled with physical and institutional reconstruction that benefits local communities will provide more sustainable change. 

Strengthening the national government is also an important step in achieving not 

only women’s rights, but due process rights for everyone across the country, but the 

national government faces many hurdles, including no working court system, no 

rule of law in the country, and a limited national army. 

Congress has shown support for the participation of Afghan women in the reconstruction process. On November 28, 2001, after the Taliban had been ousted from 

power, the Senate passed Concurrent Resolution 86, expressing the sense of Congress that women from all ethnic groups in Afghanistan should participate in the 

economic and political reconstruction of Afghanistan. However, the words of these 

resolutions, including the Senate Concurrent Resolution 86, have not become a reality two years after they were passed. 

Support for the reconstruction of Afghanistan as a whole is needed for there to 

be long-term advancement of women and democratic governance in the country. Although the U.S. government has stated its commitment to stay the course with Afghanistan, events in Iraq for the past year have taken the attention away from Afghanistan. The recent spending for Iraq’s reconstruction is 20 times more than Afghanistan’s, despite the fact that the two countries are the roughly the same size 

and population and even though Afghanistan has suffered more destruction over 23 

years of war. 

President Bush’s original request this year for $87 billion to help rebuild Iraq and 

Afghanistan made no mention of programs for women. It took a determined stand 

by women lawmakers to earmark $65 million for that purpose in Afghanistan. We 

cannot expect change in the social conditions that Afghan women face without taking concrete steps to help them in their daily struggle to live as human beings. 

Even though reconstruction efforts in Afghanistan have been a multilateral effort, 

funding shortfalls from international donors and governments are enormous and 

even those funds that are pledged are in many cases never distributed. According 

to a CARE/CIC report, only a tiny fraction of pledged funding had resulted in completed reconstruction projects by May 2003.4 Without continued international assistance, Afghanistan risks falling back to lawlessness. 

47

5Moghaddam, Sippi. Including Marginalised Groups in the Legal system: State Reconstruction 

and International Engagement in Afghanistan, Center for Development Research, Bonn, May 

30–June 1, 2003. 6 International Crisis Group, Afghanistan: Women and Reconstruction. ICG Asia Report N. 48, 

Mar. 14, 2003. 7 International Crisis Group, Afghanistan: Women and Reconstruction. ICG Asia Report N. 48, 

p. 17, Mar. 14, 2003. 8Dawn, Jan. 27, 2003

III. Political and Civil Society Participation 

In assessing the current status of Afghan women’s participation in civil society 

and the political sphere, it is necessary to understand the context in which such 

participation takes place. Positive achievements for women’s role in the public 

sphere have been realized in the past year:

• 2 women were ministers in Afghan Interim Authority out of 30 members.

• 3 members of the Special Independent Commission for the Convening of the 

Emergency Loya Jirga were women.

• 11% of Loya Jirga seats were guaranteed to women.

• 200 women were elected to the Loya Jirga (14%).

• All Loya Jirga delegates had a 3-hour training session on gender sensitivity.

• 2 women are currently ministers in the Transitional Administration out of 28 

members.

• A woman heads up the Human Rights Commission and several women are 

members.

• A Ministry of Women’s Affairs has been created.

• 7 of the 30 members of the Constitutional Review Commission were women.

• Several women are members of the Judicial Reform Commission.

• 34 seats out of 500 are reserved for women delegates from each province for 

the Constitutional Loya Jirga.

Although achievements were made in higher government office and elected bodies, 

the majority of Afghan women continue to remain marginalized. Afghan women are 

active members of many small civil society groups and participate at the micro level 

in the economy, but they remain out of positions of influence and power within larger civil society groups and at the macro level and in policy planning.5

A. Afghan Women Leaders and NGOs 

Afghan women NGOs are an important civil society tool for the advancement of 

women as they provide a platform for Afghan women to work, learn and build leadership skills. However, most of these groups receive small grants that limit their 

activities to vocational training, literacy programs and other activities that do not 

have a big impact on women’s economic empowerment.6 Overall, women’s representation in broader civil society organizations is still relatively limited. Major Afghans 

NGOs have women members involved in community mobilization but not in positions of leadership.7

Positive developments in the last year include networking, conferences and other 

fora organized by Afghan women. Some of these have been supported by the U.S. 

and other donors and continued assistance with these types of initiatives will help 

strengthen women’s participation in civic society. For example, more than 170 Afghan women from different refugee camps, delegations from Kabul and representatives of NGOs attended a Women’s Jirga and expressed their point of view on the 

political, social and economic condition of the country. The Jirga was convened to 

review political changes in Afghanistan and the role of Afghan women in the current political scenario of the country. The Jirga expressed concern over the prevailing fragile security situation in many parts of the country and demanded of the 

government to eradicate warlord culture from the society.8

B. Voting 

Voting is an important tool to get women involved in the political process. The 

elections next year will mark the first time that women will be registered to vote 

in Afghanistan. However, the current climate of intimidation, harassment and exclusion from social, economic and political activities reported by women’s organizations and civil society groups to the UN Security Council during its visit to Afghanistan this months shows that there are real threats against the opportunity for 

women to take part in those elections. 

48

9 UNIFEM, Women’s Leadership Role in the Reconstruction of Afghanistan, located at 

http://www.unifem.undp.org/afghanistan. 

10Tohid, Owais. Christian Science Monitor, Aug. 25, 2003. 11 IRIN News, April 17, 2003 12 Human Rights Watch Report, Killing You is a Very Easy Thing for Us, pp. 46–59. Vol. 15, 

No. 5(c), July 2003. 13Prusher, Ilene. Afghan Women Make Political Gain. Christian Science Monitor, Nov. 14, 

2003. 

In addition to security which overrides all developments for women in Afghanistan, special attention needs to be focused on reaching out to women in remote and 

rural areas. Merely setting up voting booths in larger cities or towns and expecting 

women to participate will not empower women to go through the important mechanisms of democratic government. 

Registration of all voters, especially women, remains a daunting task with limited 

resources committed by donors at this point. Currently, it is estimated that only 2% 

of women in Afghanistan have identity cards, a requirement to prove citizenship.9

This shows the enormous challenge that lies ahead to register women voters in the 

country. 

Women’s rights activists are hopeful that their increased participation through 

voting will increase their ‘‘value’’ as voters in the long run and promote changes in 

the tribal system and giving them more say in future policies.10 However, without 

continued and committed international support, Afghan women will not be able to 

sustain their participation at any level. 

C. Political Processes 

A women in one province stated that although women constitute a larger number 

than men in the city government’s civil organs, they were dissatisfied with the 

present atmosphere in the province. ‘‘Women are allowed to work, but are indirectly 

suppressed [so as] not to develop and not to have a say in ongoing affairs.’’ She 

noted that all the key posts in the government organs were occupied by ex-combatant commanders, most of whom were from one specific area.11

The past election for the Loya Jirga in June 2002 provided valuable learning lessons on increasing women’s role in the democratic process. A quota mandated the 

minimum number of women that had to participate and women were vocal and important parts of the process. One women even ran for president and came in second, 

ahead of two male competitors. However, the learning lessons were also that women 

speaking out against the inclusion of human rights violators at the proceedings did 

not lead to any changes and women were left to fend for their own security during 

and after the proceedings. Many participants, both men and women, were harassed, 

attacked, or even killed after speaking openly against various groups or factions at 

the June 2002 Loya Jirga.12

The current process to select the 500 delegates for the Constitutional Loya Jirga 

to take place in December 2003 is underway and attention needs to be focused on 

providing security for delegates both before, during and after the proceedings. The 

positive development is that two women from Afghanistan’s 32 provinces must be 

elected to the Constitutional Loya Jirga. Women can also be chosen in the general 

elections and by President Karzai, who will appoint 50 delegates. 

Although women have been chosen at women-only elections throughout the country, election organizers continue to be threatened and in some provinces, no women 

have showed up due to fears of security and condemnation since some mullahs have 

reportedly announced that women cannot participate in the elections.13

D. Recommendations 

• Women’s rights must remain a high priority for all actors in Afghanistan during 

the reconstruction process. The August 2002 Report of the Special Rapporteur on 

Human Rights in Afghanistan cited the need to incorporate a rights-based and 

gender-sensitive methodology in all programming pertaining to Afghanistan, so 

that women can exercise their basic human right to fully participate at all levels 

of political and civil reconstruction.

• Donor agencies should set aside funds for projects directed exclusively to meet 

women’s needs, including long term development. Targets and indicators on gender equality should be established at the outset of program design and donors 

should report on the impact of spending on the promotion of gender equality and 

meeting women’s human rights.

• Initiatives to teach women how to vote, advocate, manage, and govern by serving 

as elected and appointed officials must be supported. Programs should educate 

women on the importance of voting and political participation, while others should 

49

14 Report of the Security Council Mission to Afghanistan, 31 October to 7 November 2003, S/

2003/1074. 

train women candidates on running campaigns and mobilizing female membership in political parties.

• Concrete measures must be taken to ensure women have the logistical means of 

equal and full participation. Providing for women-only election stations, designing 

election ballots to allow illiterate women to participate, and conducting information campaigns to educate women on the importance of voting and taking part in 

the process are a few examples.

• Security of voting places and confidentiality of votes must be provided. In Afghanistan’s present political climate, the provision of appropriate security will 

make the difference between whether a woman can attend and participate in the 

Loya Jirga and elections or not.

• The establishment of women’s shuras at different levels should be supported since 

traditional shuras exclude women.

• Women must be involved as decision makers in social and economic reconstruction 

at the national and local level.

• Training for Afghan women in areas such as rights, administration, leadership 

and advocacy should be provided so that they are able to participate fully in political processes—as voters, candidates in elections at all levels and politicians.

• Funding for local women’s organizations should be provided to support local women’s needs and interests.

• Human rights and, particularly, women’s rights should be monitored and reports 

on how Afghan women are benefiting from the distribution of donor funds should 

be completed.

• Accurate data on which to base needs assessments, for example the numbers and 

roles of women in education and employment, should be collected. 

IV. Security 

When referring to ‘‘security,’’ both national security and personal security are important for women to be able to participate in civil society and the political sphere. 

Women are the primary victims of insecurity, which limits their access to public life. 

Violence, political intimidation and attacks on women and girls have been discouraging political participation and endangering gains in women’s rights seen since the 

fall of the Taliban in late 2001. Unless far more is done to establish security in the 

many areas where it is still lacking, there can be no economic and political revival 

and no hopes for a sustained democracy. 

A. Main Sources of Insecurity 

The recent UN Security Council report states that although some progress has 

been made in reconstruction and economic stabilization, the three main sources of 

insecurity are threat from factional forces, terrorism and the rapid growth of drug 

production and trafficking.14

The militarization of society has led to increasing numbers of abductions. Often 

families marry off girls at the youngest possible age to use the bride price for family 

survival and reports indicate this practice is now increasing. 

B. Types of Problems Encountered 

The Afghan Human Rights Commission has documented over 2,000 human rights 

violations in the past 15 months, including illegal detentions, forced evictions, rapes, 

kidnapping, trafficking, and attacks on girls’ schools. 

Rape, honor crimes, sexual assault, forced prostitution, and forced marriage, are 

widespread and reports of forced prostitution and domestic violence in particular are 

increasing. Rules preventing women from receiving education and restricting their 

employment have been relaxed, but human rights groups say women continue to be 

harassed, abused and threatened throughout the country, especially in the provinces. 

In Kabul, things on the surface have gotten better. However, outside of Kabul, 

the situation has not changed much. Many attribute this to the fact that regions 

outside of Kabul are controlled by men with guns and drug kingpins. 

The warlords have been brought into the current Afghan government in an effort 

to get them to buy into the importance of national unity, but they still hold a lot 

of power in the regions. For example, last year, a Loya Jirga delegate who campaigned for more open, accountable government was imprisoned and beaten for two 

days and nights in Herat. A leading female doctor in Herat held a meeting for 120 

50

15 Bahrain Tribune, May 31, 2003. 16 Id. 17 Collett-White, Mike. Reuters, Nov. 2003. 

women to discuss women’s issues. The following day, her private office was 

searched, locked and put under armed guard, her private practice effectively closed 

for two months. Fighting her case only brought more armed men to her house and 

four hours of interrogation. ‘‘Now is the time for democracy and modernization in 

Afghanistan,’’ she said. ‘‘But in Herat there is a Taliban-like lack of democracy. If 

anyone tries to make any step towards democracy they are denounced.’’ 15

In March 2003, a journalist for Radio Free Afghanistan was beaten and briefly 

jailed for asking questions about human rights—at the opening of a regional office 

for the Afghan Independent Human Rights Commission. ‘‘This kind of incident 

sends a signal to the population at large,’’ said one UN official. ‘‘People must feel 

there are fora for debate.’’ 16 The UN also cites cases of arbitrary detentions, extortion and torture, common in many parts of Afghanistan where soldiers remained unpaid for months at a time. 

Although the Provincial Reconstruction Teams were meant to provide security 

and small scale reconstruction assistance, many aid workers are strongly opposed 

to the blurry line that is created between military and aid operations. One UN 

workers has stated that PRTs are not the answer and if we want troops or soldiers 

in Afghanistan, they must be able and willing to provide security, not try to do humanitarian projects that jeopardize the rest of the aid community. UNHCR has already suspended activities in some areas and the presence of the UN as a whole 

is endangered. 

C. Effects of Insecurity 

Professor Mahbuba Hoquqmal, State Minister of Women’s Affairs, said the lack 

of security across Afghanistan could hamper women’s participation in the Loya 

Jirga, which meets from December 10 to finalize the constitution.17 It could also affect the number of women taking part in presidential elections scheduled for next 

June. 

Simply stated, without national and personal security for Afghan women, civic 

and political participation will not increase, but will deteriorate. 

D. Recommendations 

• A larger international peacekeeping force that can displace the power of the warlords and strengthen the central government is needed. The ISAF mandate does 

not extend beyond Kabul, despite a clear need and desire from the Afghan people 

for its expansion until domestic infrastructure is created to ensure security. The 

result has been a violent environment where warlords and factions dominate and 

women are particularly vulnerable, giving rise to a vicious cycle where, because 

of insecurity, women are unable to participate in reconstruction and public life 

and their rights are further eroded.

• The size of the current peacekeeping force led by NATO is only 5,500 and remains 

limited to Kabul. Plans to send peacekeepers outside of Kabul for the first time 

is deficient—it only includes about 500 peacekeepers being sent to one city in the 

north. In order to allow women to meaningfully participate in the political process 

in Afghanistan, an expansion in the size, range, and mandate of international 

peacekeeping forces in Afghanistan must be immediately implemented.

• Enhanced assistance is needed to accelerate training for the national policy and 

army.

• Disarmament, demobilization and reintegration (‘‘DDR’’) are essential. Also, the 

professional police force, to include women officers, must be trained and equipped 

to address women’s special security needs.

• Public education campaigns on the rights of women to physical security need to 

be developed and launched.

• Initiatives to end violence against women, and particularly sexual violence, must 

be supported and sexual harassment prohibited. 

V. Constitution 

The draft constitution has been the focus for the past year, with many Afghans 

hoping that it will provide the framework for national reconciliation and progress. 

The issue of women’s rights and individual rights and liberties has been closely followed. However, as past Afghan history has proven, it is not the language of the 

constitution that will drive reforms and implementation, but the capacity and willingness of judicial and other institutions to implement and guarantee those rights, 

51

18 Art. 25, Constitution of Afg. of 1964. 19WAW Press Release, November 4, 2003, www.waw.com. 

public support for reforms, and backing from the clergy who wield immense influence over many communities. 

A. Constitutional Provisions Affecting Women’s Rights 

The 1964 constitution included a broad ‘‘equality clause’’ that provided that ‘‘All 

the citizens of Afghanistan, without any discrimination or privilege, have equal 

rights and obligations before the law.’’ 18 However, during the same time that this 

constitution existed, civil laws and practices that unfairly discriminated against 

women continued. 

While the draft constitution that was released this month does contain provisions 

guaranteeing human rights, equal rights, and non-discrimination for all Afghan citizens, it lacks language that women’s rights and human rights advocates have urged 

explicitly defining ‘‘citizens’’ as both women and men. 

The positive aspects of the new constitution are that it requires that specific programs be enacted for the balance and promotion of women’s education. Another step 

in the right direction is that the president is required to nominate women to 50% 

of the presidentially appointed seats in the upper house of parliament, which 

amounts to 1/3 of the delegates. Although these are improvements to the 1964 Constitution, the majority of Afghan women’s rights activists have stated that the important provisions are still vague and open to interpretation by conservative elements in the judiciary. 

While specificity in the language related to women’s rights is important, the provisions of the Constitution providing that ‘‘no law can be contrary to the sacred religion of Islam’’ can pose problems as its meaning is vague. There is also a lack of 

proper training on Islamic law in the country and the dilemma of who gets to decide 

what it is in conformity with Islam will exist. If it is the legislative body, then what 

role does the judiciary have to override that will? 

B. Participation of Afghan Women in the Consultative Process 

Women have been involved in the consultative process that took place before the 

draft constitution was released. Other grassroots efforts also provided a forum for 

women to share their views on the constitution. 

In September 2003, a conference organized by Women for Afghan Women in 

Kandahar brought together 45 grassroots women’s rights activists from cities and 

provinces throughout the country to discuss the constitution. These women of different ethnicities, languages, educational levels, and economic backgrounds, and 

with varying religious convictions, crafted the Afghan Women’s Bill of Rights. Mindful of the severe violations and abuses of women’s human rights in Afghanistan, the 

Kandahar participants demanded that specific constitutional rights be secured for 

women, particularly to ensure women’s security and well being in both the public 

and private realms. The provisions of this Bill of Rights, however, were not implemented in the draft constitution that was released.19 Afghans for Civil Society also 

hosted a law conference of Afghan women in which comments on Afghanistan’s constitution were documented. 

Recently, a ‘‘Gender and Law Working Group,’’ comprised of leading Afghan 

women lawyers, judges and activists organized through the Ministry of Women’s Affairs, shared their concerns regarding the constitution and the present status of 

women. This Working Group is in addition to Afghan women’s NGOs that are currently commenting upon the draft constitution. 

The Working Group has stated that physical abuse of women, the lack of employment opportunities, forced or arranged marriages and the high rate of deaths during 

childbirth are major problem areas. Members of the working group stress the need 

for a new school curriculum focusing on both sexes rather than just men. They also 

call for at least two women to be elected from each province to the House of People, 

one of two parliamentary chambers, rather than one as outlined in the draft constitution. 

Although there has been some debate about the draft constitution, the current climate of intimidation and fear around the country threatens to hinder the Constitutional Loya Jirga process—especially with regards to the freedom of women delegates to participate and voice their opinions. Open debate must be allowed and can 

only be ensured by guarantees of security. Otherwise, it allows one side—the side 

with the guns and power—to decide upon the provisions of the constitution. 

52

20 Najibullah, Farangis. RFE/RL, Mar. 12, 2003. 

VI. Judicial Reform 

Afghanistan is obligated to reform its judicial system as part of the Bonn Agreement creating provisional guidelines for steering the country toward democratic 

elections in 2004. But Afghan lawyers and human rights activists have complained 

that little progress has been made toward reforming the country’s judicial system. 

This is in large part due to the lack of funding, resources, human capacity and 

attention that the Judicial Reform Commission has received in comparison to the 

Constitutional Commission. Even if Afghanistan were to pass a perfect constitution, 

it would be meaningless as the institutions and support system needed to fairly implement the constitution have not been built since the Bonn Agreement. This affects 

not only the rights of women, but endangers due process rights, inalienable freedoms, and the prospects for an independent judiciary. 

A. Access to Justice 

Women’s rights protections cannot be meaningfully established without the rule 

of law. Women have little recourse to justice because of social barriers. Even when 

a woman is able to approach the police or the courts, she faces extreme discrimination. The current criminal justice system has not addressed issues of violence 

against women and it is more likely to violate the rights of women than to protect 

them. Unless attention is paid to rebuilding the judicial system, these problems will 

worsen as the gap between laws and realities widens. 

Laws discriminating against women continue to be implemented. Most imprisonment of women is according to unwritten customary law for acts such as running 

away from home and adultery. Women have continued to receive harsh punishments 

without due legal process. Where there are laws that could protect women, they are 

not enforced. 

Mohammad Farid Hamidi, a member of the Afghan Independent Human Rights 

Commission has stated that defense lawyers in the country are virtually powerless 

to aid defendants. Hamidi says the Afghan judicial system is also vulnerable to economic and political pressure and can come under the influence of factional commanders and regional governors. ‘‘In Afghanistan, trials do not take place in accordance with law. In provinces, warlords are the law, the judge, the government.’’ 20

B. Support for Judicial Education and Training 

Another major hurdle to a functioning judicial system that is able to implement 

the rights enshrined in the new constitution is training and education for lawyers, 

judges and prosecutors. Many graduates of madrassahs, or Islamic religious schools, 

were appointed as judges during the five-year Taliban regime. Many of these judges 

are still working in the country’s judicial system despite the fact that they are not 

properly qualified. Donor countries need to contribute financial and technical resources to train judges, prosecutors, criminal defense lawyers, and other legal professionals if there is to be hope that the gap between laws and their implementation 

can be narrowed. 

C. Recommendations 

• Resources should be made available for women to pursue legal remedies when 

their rights are violated.

• Support mechanisms for women whose rights have been violated, including medical and counseling services, should be provided.

• The area of family law should be rehabilitated and reformed.

• Judges and lawyers should be trained in gender issues and international law.

• Research of customary laws should be undertaken in order to determine if they 

are in compliance with the civil codes. 

VII. Education 

Only 10% of Afghan women are literate, presenting huge obstacles in the way of 

civic and political participation of women. 90% of the female population cannot be 

ignored and only support for education, capacity building and training will provide 

women with the basic skills they need to participate in the political process and democratization. 

53

21 Human Rights Watch Report, Killing You is a Very Easy Thing for Us, p. 13. Vol. 15, No. 

5(c), July 2003. 22 IRIN News, Aug. 25, 2003. 23Monakhov, Yola. Taipei Times, Oct. 14, 2003. 24 IRIN News, Oct. 21, 2003. 

A. Challenges in Education 

While there are over a million girls enrolled in school, millions more are not due 

to lack of access and fear of being attacked.21 Qualified and trained teachers are 

lacking in many schools. 

Violent attacks against girls’ schools continues. On August 25, 2003, a girls school 

24 km away from Kabul was set on fire and leaflets were left demanding that people 

keep their girls away from school. The fire would have burnt down the entire school 

if hundreds of villagers had not come to the rescue. Despite such attacks, there has 

been a 30% increase in enrollment of students since last year as communities are 

eager and want their children to go to school.22

While there has been progress in getting more girls in primary school, there has 

been almost no assistance for higher education. The Minister of Higher Education 

has made improving access for women a priority, however, there has been little support from the U.S. and other donors. Although women have been attending universities in Kabul, Kandahar University still has only six women.23

Unless women have access to higher education, there will be a limit on their ability to assume leadership positions. In addition, given the increase in primary education enrollment, there is a tremendous need for more teachers and education administrators. Investing in teachers colleges would help alleviate some of those shortages. 

According to Tajwar Kaker, a former deputy minister of women’s affairs, illiteracy 

rates are the root cause of women’s problems in the provinces. ‘‘We need a countrywide public-awareness campaign through clergy, tribal elders and others to enlighten the minds of the men who still follow old concepts and prejudice,’’ Kaker asserted.24

B. Recommendations

• Massive and immediate teacher training and refresher training courses needs to 

be provided.

• Existing primary, secondary and high school textbooks should be revised from a 

gender-perspective.

• Primary and secondary schools must be properly equipped throughout the country.

• Girls must have full access to schools.

• Adult education courses should be available for all young women who were unable 

to complete their schooling.

• Vocational adult education courses should be provided for women, especially for 

those that are the main income earners of their families.

• Courses in business skills, such as management, accounting and marketing 

should be available to women.

• Micro-lending options should be available to women. 

VIII. Health 

Health is a prerequisite for the full and active participation of women in society. 

Ignoring the extremely poor health care conditions facing Afghan women results in 

the risk that Afghan women will view donors as not caring about their well-being, 

but simply in their symbolic participation in the political process or the public 

sphere. In addition, it is not realistic to expect women who are facing severe health 

issues to be able to physically or psychologically participate in the political process. 

The health care statistics in Afghanistan are evidence that this sector is not receiving the attention and support needed to foster women’s growth than development. For example, for every 100,000 pregnancies in Afghanistan, about 1,700 Afghan women die in childbirth compared to nine deaths for every 100,000 pregnant 

women in the United States. Over 50 women die a day related to pregnancy-related 

deaths, which experts say are preventable. 

Mental health is an area that seems to be overshadowed or ignored and yet it 

is a dominating obstacle in the way of women’s full participation and voice in all 

aspects of their lives. A 2001 study by Physicians for Human Rights found that 

54

25Physicians for Human Rights, Afghan Recovery Report, N. 44, January 17, 2003, cited in 

Institute for War and Peace Reporting available at http://www.iwpr.net. 

more than 70% of Afghan women suffered from major depression, nearly two-thirds 

were suicidal and 16% had already attempted suicide.25

Without support for basic health services for Afghan women, success cannot be 

achieved long term in other secondary spheres. 

A. Recommendations 

• Medical equipment and medicines must be provided to women on an urgent basis.

• Refresher and new courses at the community level to train women in health services, including heath-education and maternal care, must be provided.

• Gender-sensitive trauma counseling and support for women’s psycho-social health 

care must be available.

• Easily-accessible quality reproductive health and family planning services must 

be available.

• Medical training must be provided to Afghan women. 

IX. Conclusion 

Experience shows that if implementation of women’s rights and gender equality 

commitments is deferred until ‘later’, gender inequality is worsened. The promotion 

of gender equality and the empowerment of women are critical to the positive 

growth of civil society and the political sphere in Afghanistan and gender-equitable 

development strategies are essential foundations for sustainable development and 

reconstruction.

Mr. JANKLOW [presiding]. The next gentleman we will hear from 

is Mr. Kumar. 

STATEMENT OF T. KUMAR, ADVOCACY DIRECTOR FOR ASIA 

AND PACIFIC, AMNESTY INTERNATIONAL, U.S.A. 

Mr. KUMAR. Thank you very much, Mr. Chairman. 

Amnesty International is extremely pleased to be here to testify 

and express our concern about the new constitution that is being 

drafted for the last 3 or 4 months. 

Before I start my testimony, I would like to appreciate the Committee, and especially Chairwoman, who chaired until a couple of 

weeks ago, for the leadership she provided all these years in addressing the women’s rights issues in Afghanistan. 

I also want to recognize Congressman Rohrabacher for your 

years of fight for Afghans. I still remember, Congressman Rohrabacher, when no one was talking about Afghanistan, before 

Taliban, you was the single voice. So we appreciate and we compliment you on that. 

Coming to the issue of what is the situation now, what we as 

human rights organizations are concerned with something I would 

like to address very quickly because I have only 5 minutes. That 

Loya Jirga, the constitutional Loya Jirga is going to meet in December 10th. I mean, I think that is the date. Yes, December 10th. 

It is only 20 days left. So whatever we want to do should be done 

within this 20-day period. 

It is a challenging time, and we have to make every effort to 

make sure the concerns we have on these issues are being debated 

and brought into attention to the delegates there so that they can 

have a new vibrant constitution that can lead the country to peaceful existence in the future. 

Before I go and list the concerns we have, I would like to talk 

about the process per se. Amnesty International is concerned that 

during the last 3 or 4 months of the process the Constitutional 

55

Loya Jirga Commission did not consult with all the segments of the 

societies in the country. 

Even human rights advocates were sidelined. They were consulted, but they were sidelined. Civil society folks were sidelined. 

So what we are seeing is a group of people who are going around 

talking to different Afghan society individuals, and coming up with 

the draft. While we comment on the draft, let me say what our concerns are: 

First concern, women’s rights. It is shocking, to be honest with 

you, it is shocking to see there is no mention, no specific mention 

of women’s rights in this constitution. There are vague references 

of women and men will be treated alike, all the rest of it. 

But given the history of Afghanistan, given what the women of 

Afghanistan have gone through and going through now, there is no 

specific mention of the women’s rights issue. 

On that note, I would like to point—bring the attention to the 

Committee that Afghanistan actually ratified CEDAW, even U.S. 

did not ratify CEDAW, but they have ratified, but they did not take 

any steps to incorporate what is in CEDAW in the constitution. 

That is what is expected of. 

Second is children’s rights. Again, there is no explicit reference 

to rights of children in this constitution. Just for your information, 

even before Taliban came into the scene almost half a million children were killed due to war. We are talking about killed. Thousands of children, we do not know how many thousands became 

disabled because of land mines and other issues, and thousands 

and thousands became child soldiers. 

Women and girls were treated like spoils of war. But in this new 

constitution, which is supposed to be written by the Afghans who 

know the pain and suffering of Afghans, did not even care to mention about child’s rights in their constitution. 

The third is the human rights commission. We are extremely 

happy to note that the current human rights commission is moving 

ahead and they are making progress with all the limited resources 

they have, but in this constitution, even though they were made 

part of the statutory body there, there is no teeth given to them. 

That is our worry is. Since Afghanistan had such a violent and 

painful experience in human rights, we are surprised, to say the 

least, that human rights commission did not have enough power to 

implement its proposals and investigation, and all the rest of it. 

Quickly I jump to the very important issue, the issue of emergency, powers that has been given—that can be given under then 

we constitution. 

Every country had the right to declare emergency in civil strife, 

but in this constitution, draft constitution, there are a lot of loopholes left there. It could be the President, it could be somebody 

else, can use that to basically become a dictator of that country. 

That is something this Committee and the international community should look into that. 

I was surprised when the Administration was testifying here. 

They did not mention all these disturbing developments there. 

They were painting a rosy picture of what is happening there. Unfortunately, that is not the reality of what is happening there for 

this constitution, the draft constitution. 

56

So we appeal to this Committee to take this 20-day time period 

to make sure at least some of the basic requirements like women’s 

rights, children’s right, human rights commission’s power, and 

breaks in the emergency regulations are being implemented 

through different channels. U.S. counsel do not have influence. 

Bush Administration is sending advisors to every cabinet office, 

every cabinet office to give them advice, so they cannot say they 

do not have influence. Let them use their influence. Let them use 

our influence through human rights community and human rights 

issues. 

Mr. JANKLOW. Sir, I am going to have to ask you to wrap up 

quickly. 

Mr. KUMAR. Okay. 

Mr. JANKLOW. We are going to have a vote that is scheduled at 

3:45, and I have got to get to Mr. Schneider. 

Mr. KUMAR. Okay, I am——

Mr. JANKLOW. And then questions. 

Mr. KUMAR. Quickly. 

Mr. JANKLOW. Please. 

Mr. KUMAR. Finally, I will say U.S., just the money part between 

Iraq and Afghanistan, it is 20 to 1 that was given to Afghanistan, 

$20 to $1 to Afghanistan. That is something that is disturbing to 

everyone who does work on Afghanistan and human rights issues. 

Thank you very much, Chairman. Thank you very much to everyone. 

[The prepared statement of Mr. Kumar follows:]

PREPARED STATEMENT OF T. KUMAR, ADVOCACY DIRECTOR FOR ASIA AND PACIFIC, 

AMNESTY INTERNATIONAL, U.S.A. 

Thank you Madam chair and distinguished members of this committee. Amnesty 

International is pleased to testify at this important hearing. 

Amnesty International has worked extensively on Afghanistan for over 20 years 

and has documented and advocated for the human rights of Afghans. In 1995, even 

before the Taleban came to power, Amnesty International launched a major international campaign entitled ‘‘World’s Largest Forgotten Tragedy,’’ to highlight the 

suffering of the Afghan civilians. By then, over 400,000 children had died due to 

war, and over five million people had fled to Pakistan and Iran as refugees. With 

the exception of only a few members of this Congress, the world completely ignored 

the plight of Afghans at that time. Amnesty International continued the campaign 

after the arrival of the Taleban in 1996, when Afghan women lost basic rights. Only 

after the tragedy of 9/11 was newfound attention brought to Afghanistan. Currently, 

we are focusing on incorporating human rights in the reconstruction of Afghanistan, 

including in the new Constitution. We hope that the new Constitution and the elections in June 2004 will bring some relief to the Afghan civilians. 

THE DRAFT CONSTITUTION

After a series of delays, the draft of the new Afghan constitution was finally made 

public on 3 November 2003. This draft will be presented to a Constitutional Loya 

Jirga (General Assembly) in December 2003, which will debate the draft and approve the text of a new constitution for Afghanistan. 

The Bonn agreement provided for the creation of a Constitutional Commission 

(CC). The 35 member CC was established in April 2003 and has conducted public 

consultation on the constitution through meetings and through written and audio 

questionnaires. However, the CC has been widely criticized for failing to carry out 

its mandate in a transparent and inclusive manner. In particular, it has failed to 

conduct a meaningful public consultation with a broad cross-section of the population, including members of civil society and human rights advocates. 

While we appreciate that many of the reforms we are calling for in the criminal 

justice system are long-term projects, it is vital that the highest possible standards 

are set out in the Constitution as something to work towards in the future. A conVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
57

stitution in and of itself can never be sufficient to prevent human rights violations. 

However, a constitution that includes strong guarantees for the protection of fundamental human rights and freedoms can be a powerful tool in preventing human 

rights abuses, as a set of instructions to public servants, judges, leaders and citizens, on how to protect human rights within their national constitutional context. 

AI appreciates the huge challenge presented by this crucial stage in the Bonn 

process but stresses that unless difficult choices are made now impunity and injustice will continue, and there will be no lasting peace. 

FOLLOWING ARE SOME OF OUR CONCERNS AND RECOMMENDATIONS: 

Women 

Amnesty International is disappointed that there is no mention of women’s rights 

in the current draft of the Constitution. Members of the Afghanistan Transitional 

Authority (ATA) have repeatedly expressed their commitment to improving the lives 

of Afghan women but this is not reflected in the current draft of the constitution. 

If women are to realize their rights, the constitution must enshrine the principle 

of equality of women and men and prohibit all forms of discrimination against 

women. The language in the current draft does not provide for the specific protection and promotion of women’s rights. AI welcomed Afghanistan’s ratification of 

CEDAW without reservations earlier in the year, but is concerned that the current 

draft fails to incorporate many of the obligations to which the ATA has committed 

itself by ratifying this treaty. 

Amnesty International considers the following points to be of particular importance:

• women should have the right to choose a spouse freely: this includes forbidding of child marriage

• women should have the same rights and responsibilities as men in marriage 

and at the termination of marriage

• the same rights and responsibilities for mothers and fathers in the raising of 

their children.

Amnesty International recommends that Article 54 and Article 131 of the draft 

Constitution reflect these points as required by the CEDAW treaty whose provisions 

the ATA has recently made a legal commitment to uphold. 

The lack of clarity over the definition of citizen may also affect women’s right to 

vote and stand for political office. The term ‘‘citizen’’ must be clearly defined as referring to both male and female Afghans to ensure that they have equal access to 

their rights. 

Children 

Amnesty International notes that there is no reference in the draft Constitution 

to the special rights of children, and urges that the rights of children according to 

the Convention on the Rights of the Child become part of the Afghan Constitution. 

Afghan Independent Human Rights Commission (AIHRC) 

Amnesty International welcomed the establishment of the AIHRC in the Bonn 

agreement and is encouraged that the AIHRC has been given constitutional status 

in the current draft. The AIHRC has made remarkable progress and has already 

made significant contribution to the improvement of the human rights situation in 

Afghanistan. However there are serious concerns that the current draft of the clause 

on the AIHRC (Article 58) does not grant the AIHRC the powers it needs to allow 

it to fully protect human rights. 

Amnesty International urges that the commission’s powers to investigate and 

remedy abuses are strengthened, including by providing it with the powers to receive and independently investigate individual complaints and issue decisions providing redress. The commission should also be empowered to initiate cases in Afghanistan’s courts to remedy human rights violations. The current draft specifies 

that in case of a violation of a persons ‘‘fundamental rights’’ they can make a complaint to the commission. Amnesty International recommends that ‘‘fundamental 

rights’’ be clearly defined as understood in international law. 

The AIHRC should also have a mandate to ensure that new and existing legislation fully complies with Afghanistan’s international treaty obligations and protects 

human rights. Currently the Supreme Court carries out this function, but AIHRC 

staff have more expertise in this area. If the AIHRC concludes that any Afghan legislation does not comply with human rights standards, they should have the authority to challenge the legislation in court. 

58

Freedom of religion 

Amnesty International welcomes the provision in the draft that followers of religions other than Islam are ‘‘free to perform their religious ceremonies’’ (Article 2). 

However the article states that this is permitted ‘‘within the limits of the provisions 

of law’’ which may present an opportunity for restrictions to be placed on religious 

minorities in other domestic laws at a later date. 

Education 

Amnesty International notes the state’s obligations to provide education to Afghans (Articles 43 to 46), and particularly welcomes the provision to promote education for women. Amnesty International asks the Constitutional Loya Jirga to note 

the definition of education according to international law. Amnesty International 

would also urge that education on human rights is included in the school curriculum 

to ensure that Afghans are made aware of their rights and how to realize them. 

Citizenship 

A fundamental concern is that there is no clear definition of ‘‘citizen’’ in the current draft. The constitution should clearly define ‘‘citizen’’ to mean every Afghan 

man, woman and child to ensure that the rights set out in the constitution apply 

equally to all people in Afghanistan, male and female. 

Afghanistan’s International Human Rights Obligations 

Amnesty International welcomes the commitment made in the constitution to 

abide by the international conventions to which Afghanistan is a state party (Article 

7). Afghanistan has signed following human rights treaties and these should be 

made a more explicit part of the constitution, by name:

• the International Covenant on Economic Social and Cultural Rights

• the International Covenant on Civil and Political Rights

• the Convention on the Elimination of All Forms of Racial Discrimination

• the Convention on the Elimination of All Forms of Discrimination Against 

Women

• the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment

• the Convention on the Rights of the Child

• and the Rome Statute of the International Criminal Court.

Article 7 should not only require the government not to violate human rights treaties, but also require it to take active, effective and immediate steps to make human 

rights a reality for every Afghan man, woman and child. 

The requirements of Afghanistan’s human rights treaty obligations should also be 

included in the article on guiding laws and values (Article 3) and in the list of the 

main tasks of the government of Afghanistan (Article 5). 

Procedures for enforcing rights 

An important omission in the draft constitution is the establishment of an accessible complaints procedure for all Afghan citizens can turn if their rights under the 

constitution are not respected. It is most effective and accessible for these complaints to be made through the ordinary courts. It is important for a powerful institution like the courts to be given responsibility to protect the enforcement of the 

Constitution, if it is to be respected. 

Article 56 should be extended to allow citizens to make a complaint about 

breaches of any of their rights under the constitution in any court, and to empower 

the courts to give a full remedy for all breaches. Lawyers should be able to help 

citizens to make their complaint, without charge where necessary. However the procedure should be simple, allowing citizens to bring complaints themselves where 

there is no lawyer available to assist them. 

Death Penalty 

Amnesty International is extremely concerned that the current draft allows for 

the imposition of the death penalty, although it does not specify for which crimes 

(Article 129). In Amnesty International’s view, the death penalty is a violation of 

the most fundamental right of every human being—the right to life. It is therefore 

not possible for any country fully to respect human rights and, at the same time, 

sentence people to death or execute them. This is of particular concern in Afghanistan, where the courts do not have the capacity to operate within the most basic 

minimum standards for fair trial. The UN Commission on Human Rights this year 

called on the ATA to ‘‘declare a moratorium on the death penalty in the light of proVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
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cedural and substantive flaws in the Afghan judicial system.’’ Amnesty International has noted your personal commitment that Afghanistan would not authorize 

any executions until the court system was ‘‘perfect’’. We urge you to uphold this conviction and further to remove the provision for capital punishment from the draft 

constitution. 

Discrimination 

Through ratifying various human rights treaties successive governments of Afghanistan have made legal agreements to make sure that every man woman and 

child in Afghanistan would not be subject to discrimination on the grounds of tribe, 

ethnicity, class, religion, sex, or age. This is reflected in Article 22 of the draft, but 

could be strengthened by the explicit incorporation of the definition as defined in 

international law. 

Economic, Social and Cultural Rights. 

Given the overwhelming lack of access to economic, social and cultural rights 

faced by most Afghans, particularly problems of lack of access to shelter and employment, Amnesty International urges that the rights in the International Covenant on Economic, Social and Cultural Rights (ICESCR) be incorporated into the 

draft constitution to provide a strong framework for the protection of these rights 

in the future. 

Torture and Cruel, Inhuman or Degrading Treatment or Punishment 

Amnesty International warmly welcomes the prohibition of torture and ‘‘punishment contrary to human integrity’’ in the draft constitution. To strengthen these 

prohibitions further, Amnesty International suggests that explicit reference to the 

definition of torture under Article 1 of the Convention against Torture and Other 

Cruel, Inhuman or Degrading Treatment or Punishment be made. We also urge that 

torture and ill-treatment be made a crime and that those found to be guilty of such 

crimes should be brought to justice. Amnesty International also recommends strongly that explicit reference to Article 6 of the International Covenant on Civil and Political Rights, relating to the right to life, also be part of this provision in the Constitution, to make it clear that everyone has the right to life, and no-one should be 

unlawfully deprived of their life. 

Fair Trial 

One of the cornerstones of the rule of law is the notion of the right to fair trial. 

AI’s recent reports on the criminal justice system in Afghanistan document extremely serious and widespread violations of the right to a fair trial and urge that 

the constitution fully incorporate Afghanistan’s international legal obligations related to the right to a fair trial. 

AI is encouraged that some of these obligations are reflected in the current draft 

including the rights to life, liberty and dignity. The organization also welcomes that 

the draft upholds the presumption of innocence, and that it defines crime as a personal action, stating that the resulting penalties can not affect another person. 

The current wording should be strengthened to include the following provisions:

• judges must rule on the legality of detention within 24 hours, and detainees 

must have a separate right to challenge the legality of detention with the help 

of a lawyer (Article 9 (3) (4) ICCPR).

• information about charges should be given immediately.

• individuals should not be refouled to a country where they might be tortured. 

Judiciary and Courts 

Amnesty International recommends that the only law that should be applied is 

that specifically codified, written and distributed widely, to avoid the problem of ad 

hoc interpretations. This would also help to address the problem of individuals being 

detained for customary crimes, for example the crime of ‘‘running away from home’’ 

which is used regularly to detain women and girls who flee domestic violence or 

forced marriage but has no basis in statutory law. 

Amnesty International is concerned that the provisions on the judiciary in the 

draft are not sufficient to deal with the current problem of unqualified judges. 

Judges should be trained in and familiar with all aspects of Afghan law, not only 

religious law, and should receive special training in human rights law. 

The prohibition in the current draft of judges being members of political parties 

during their tenure is positive but other forms of corruption, for example accepting 

bribes, are not specifically mentioned. The prohibition of all forms of corruption 

should be made more explicit and should be included in the oath or rules governing 

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the conduct of the judiciary. The establishment of a judicial services commission 

would help to ensure effective oversight of judges and prosecutors. 

Freedom of expression 

Amnesty International welcomes the commitment to the freedom of speech in Article 34, however would urge that a guarantee be included in this article that no 

one will be imprisoned for peacefully expressing their beliefs. 

State of emergency 

The draft permits the declaration of a state of emergency if ‘‘war, threat of war, 

serious rebellion, natural disasters, or situations similar to these’’ threatens the 

independence or survival of the nation. In this event, the rights contained in the 

following articles would be suspended:

• no person can pursued, arrested or detained but in accordance with the provisions of the law

• the citizens of Afghanistan have the right to un-armed demonstrations, for legitimate peaceful purposes

• the state does not have the right to inspect personal correspondence and communication unless authorized by the provisions of the law

• other than the situations and methods indicated in the law, no one, including 

the state, are allowed to enter or inspect a private residence without prior 

permission of the resident or holding a court order

Given the ongoing instability in the country, it could be argued that present conditions fulfill the above criteria. The powers granted to the authorities by the state 

of emergency provision to suspend the important rights named above could potentially be open to huge abuse. 

Impunity 

Amnesty International is extremely concerned at the continuing climate of impunity in Afghanistan. Despite the enormous scale of the war crimes, crimes against 

humanity and other serious human rights violations committed in Afghanistan, justice continues to be denied. In Amnesty International’s experience, if people reasonably suspected of committing gross human rights violations are allowed to escape 

criminal responsibility and continue to hold positions of authority as is currently the 

case in Afghanistan, human rights violations are likely to continue to be committed. 

Amnesty International therefore welcomes the provision in the current draft that 

people who have been convicted by a court for committing a crime, specifically mentioning crimes against humanity, are prohibited from holding public office. However 

given the current state of the judicial system in Afghanistan, and the lack of any 

progress in ensuring accountability for past human rights violations, this provision 

is at the present time meaningless as no one has yet been tried by a competent 

court for crimes committed during the war. 

This makes the need for reform and reconstruction of the criminal justice system 

even more pressing, and Amnesty International continues to call on the international community to assist and support the ATA as a means of developing national capacity for ending impunity and re-establishing the rule of law. 

This would help to ensure that perpetrators of human rights abuses are no longer 

able to hold positions of power whereby they can commit further human rights violations. 

CURRENT HUMAN RIGHTS CONCERNS

Two years after the international military intervention in Afghanistan, the security situation in the country remains precarious and human rights violations continue to be committed on a vast scale. More and more regions in Afghanistan are 

considered ‘‘no-go’’ areas for aid staff and UN personnel. Afghans face continuing 

threats to their safety and security both from a general rise in crime and from 

criminal activities and human rights abuses by armed groups who remain in control 

of much of the country. The criminal justice system is too weak to offer effective 

protection of human rights and itself subjects Afghans to abuse. 

Over the past year, Amnesty International has conducted research into the state 

of the criminal justice system in Afghanistan, focusing in particular on policing, 

prisons, the courts, and women’s access to justice. The findings of our research show 

that the criminal justice system remains ineffective and is more likely to be the 

source of human rights violations than a mechanism for providing justice to those 

whose rights have been violated. Wealth and connections to those with power can 

gain an individual impunity; those without access to these resources can be arbiVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00066 Fmt 6633 Sfmt 6621 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
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trarily trapped within the system. Security is a pre-condition for the rule of law and 

it is essential for creating an environment in which human rights are respected and 

human rights violators are brought to justice. 

Security 

The International Security Assistance Force (ISAF), currently led by NATO, is 

credited with increasing security in Kabul. However, in the rest of Afghanistan, factional fighting continues between rival armed groups. In early October, fighting in 

the North between two rival commanders, both nominally allied to the central government, served as a reminder of how quickly regional tensions can degenerate into 

large-scale fighting. Moreover, ISAF does not have a mandate to intervene in conflicts involving human rights violations without a request from the government. 

US-led forces continue military operations in various parts of the country, particularly in the south and east. As part of these operations, US-led forces engage in arbitrary arrests and detentions. There have also been some incidents of bombings by 

US-led forces that reportedly have resulted in civilian casualties. In addition, as 

part of a ‘‘hearts and minds’’ campaign, and promoted as an expansion of the ‘‘ISAF 

effect’’, Provincial Reconstruction Teams (PRTs), which are part of the US-led coalition have been deployed to some provinces to engage in civil-military and humanitarian activities, including the reconstruction of schools, clinics and bridges, and the 

training of police]. PRTs, consist of relatively small numbers (50–100 personnel) and 

do not have orders to intervene in conflicts between factions or to protect civilians. 

PRTs are engaged in activities that include reconstruction of schools, clinics and 

bridges. 

Women’s access to justice 

Amnesty International is gravely concerned by the extent of violence faced by 

women and girls in Afghanistan. The risk of rape and sexual violence by members 

of armed factions and former combatants is still high. Forced marriage, particularly 

forced marriage of girl children, and violence against women in the family are widespread in many areas of the country, affecting many women. These crimes of violence continue with the active support or passive complicity of state agents, armed 

groups, families and communities. 

The criminal justice system is at present unable to protect women’s right to life 

and physical security and itself exposes them to discrimination and the risk of 

abuse. Prosecution for violence against women, and protection for women at acute 

risk of violence, is virtually absent. Those women who overcome powerful barriers 

and seek to access justice are unlikely to have their complaints considered, or their 

rights defended. 

Key donors (Germany, Italy and others) supporting reform of the police and judiciary have failed to ensure that their intervention will support protection of women’s 

rights. In both planning and implementation, donors funding the reconstruction of 

the justice system have displayed an alarming lack of attention to the specific needs 

of women who come into contact with the justice system, as well as to violence 

against women. 

The UN Security Council has expressed its commitment to giving gender equality 

a central place in post-conflict reconstruction and peace operations through the 

adoption of UN Security Council Resolution 1325 on ‘‘Women Peace and Security’’. 

The particular need for law enforcement activities and judicial and legal reform to 

ensure protection of women’s rights is detailed in the UN study on implementation 

of Resolution 1325. The international community’s involvement in Afghanistan is an 

important test case for seeing whether the will and resources to ensure such commitments are in fact implemented. 

Judiciary / Rule of law 

Currently, the Afghan courts lack legitimacy and there is a perception among the 

Afghan people that the judicial system is unable to properly serve the interests of 

justice. The lack of public confidence in the court system is compounded by a history 

of reliance on informal judicial mechanisms in Afghanistan. Where courts have been 

established, they are fragile and lack the basic facilities necessary to ensure the administration of justice. The international community’s promised program of judicial 

assistance lacks strategic direction and has been delayed in its commencement. As 

a result, the Afghan courts are still without basic facilities such as premises, furniture and copies of legal texts. 

The judiciary has not received the support necessary to ensure that it is able to 

resist the pressures upon it. The failure of the international community to provide 

effective security and bring an end to the influence of armed groups has left the 

judiciary extremely vulnerable. Furthermore, the current lack of arrangements for 

the protection of courts, judicial officers, witnesses and victims undermines the caVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
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pacity of the judiciary to assert its independence. As a result, certain individuals 

remain above the law because of their place in the community or because they are 

able to use threats, intimidation and other forms of pressure to influence judicial 

proceedings. In addition, economic influences have led to a widespread problem of 

corruption. 

The rights of defendants are currently not being protected by the criminal justice 

system. Defendants, including children, are being denied the right to a fair trial. 

There is also a widespread problem of arbitrary detention. In addition, many judges 

and prosecutors lack the qualifications and training necessary to properly apply domestic laws, let alone relevant international law. 

Police 

Police in Afghanistan are not capable of protecting human rights and are often 

human rights violators. Lack of pay, training, proper command and control structures and effective oversight mechanisms contribute to a situation in which violations continue to be perpetrated with impunity. Insufficient support for the police 

has left them responsible for a vital job without the qualifications or the resources 

to carry out their duties effectively. The police are desperately short of even the 

most basic equipments. Amnesty International saw police officers with no boots, no 

pens and paper, no uniforms, no transport and no communications equipment. 

Torture and arbitrary detention at the hands of the police are common, often for 

the purpose of extracting a confession or money. Amnesty International has talked 

to many men and children who have alleged ill-treatment and torture by the police, 

predominantly during interrogation. Common methods of torture include beating 

with an electric cable or a metal bar, electric shocks, and hanging detainees from 

the ceiling by their arms, sometimes for several days. 

Much of the police force consists of former Mujahideen, who have extensive military experience but little or no professional police training or experience. Their loyalties rest with the powerful regional commanders and not the central government. 

Prisons 

Prisons, an essential component of the criminal justice system, are crumbling 

after years of neglect and lack trained and qualified staff. While donor attention is 

focused elsewhere, prison staff are struggling to accommodate thousands of people 

who are being held for long periods in poor conditions, in violation of basic international human rights standards relating to the treatment of detainees. Prisoners 

are being held for months in overcrowded cells, some of them shackled, with inadequate bedding and food. Many staff members have received no training and have 

gone for months without pay. In addition, prisoners and detainees are not being 

held in safety, with some suffering ill-treatment and torture. 

Separation of prisoners is another major problem, with pre-trial and convicted 

prisoners being held together. In addition, there are often no separate facilities for 

juveniles or women. These groups are sometimes held in rooms within adult male 

facilities, putting them at greater risk of sexual and other abuse. Amnesty International has also received many reports indicating that ‘‘private prisons’’ exist 

across the country. 

U.S. POLICY

Current U.S. engagement in Afghanistan was shaped after the September 11 attacks on the World Trade Center and the Pentagon. The United States and its allies 

launched a military intervention which, following a UN sponsored conference in 

Bonn, Germany, installed President Hamid Karzai. Currently, an estimated 9,000 

U.S. troops are in the mainly Pashtun areas of eastern and southern Afghanistan 

battling mainly Taleban and Al Qaida forces, with the help of local warlords and 

the new Afghanistan National Army. The United States pledged to rebuild the country and often mentioned a ‘‘Marshall Plan’’ to achieve that goal. But the rhetoric 

that followed 9/11 has not been matched by the resources provided by the US and 

international community for reconstruction, especially in comparison to the allocations for Iraq reconstruction. 

WHERE IS THE MARSHALL PLAN? RECONSTRUCTION’S DOUBLE STANDARD

The Bush Administration’s recent emergency supplemental request for Iraq and 

Afghanistan contains a stark disparity between funds allocated to each country. Of 

the $87 billion, an estimated 1% is allocated for Afghanistan. The $20 billion request for Iraq reconstruction funding is 25 times as large as the Afghanistan request. The disparity exists despite the fact that Afghanistan has approximately the 

same population as Iraq. Moreover, Afghanistan is poorer and has suffered the deVerDate Mar 21 2002 14:36 Feb 05, 2004 Jkt 091183 PO 00000 Frm 00068 Fmt 6633 Sfmt 6621 F:\WORK\MECA\111903\91183 HINTREL1 PsN: SHIRL
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struction of 23 years of war. These realities argue for more—not fewer—reconstruction funds. 

In Iraq, the Bush Administration has proposed spending $2.1 billion for public safety, $2.1 billion for national security, $919 million for the judicial system, $5.7 

billion for the electrical system, $2.1 billion for the oil system, $4.6 billion for water 

and sanitation, $470 million for housing, $835 million for transportation and communications, and $850 million for health care. 

But for Afghanistan there are virtually no funds allocated for badly needed water 

and sanitation systems, housing construction, communications, or electrical systems. 

Even the funding for Afghanistan in other areas is very low—a mere $30 million 

for health care, only $10 million for the judicial system, and just $105 million for 

road construction. 

The transitional government in Afghanistan estimates that between $20–30 billion is needed over the next five years. In other post-conflict settings, an average 

of $250 per person was spent per year in aid. But in Afghanistan, donors spent only 

$64 per person in 2002. 

Given these realities, one wonders what happened to the talk of a Marshal plan 

to rebuild Afghanistan after the fall of the Taleban regime. The Bush Administration and the international community seem to be neglecting Afghanistan. Suffering 

of Afghan civilians continues and conditions for women and girls have only modestly 

improved. 

Funds are urgently needed to rebuild Afghanistan, particularly in the areas of 

education, health care, roads, housing, water and sanitation, electrical systems, judicial reform, and women’s rights and human rights generally. 

RECOMMENDATIONS

• The Bush Administration should increase its financial assistance to rebuild Afghanistan;

• Money should be earmarked for those Afghan institutions like the Ministry of 

Women’s Affairs, the Human Rights Commission, the Judicial Service Commission;

• Women should be integrated into the judicial and security institutions, including 

the Afghanistan National Army. 

Security 

• The international community must take immediate steps to institute measures to 

ensure an effective level of security and human rights protection in Afghanistan, 

particularly outside Kabul;

• International Security Assistance Force’s (ISAF) mandate (and the mandate of 

any additional security assistance or peace-keeping troops that may be deployed 

in the future) should be amended to include the duty to protect human rights. An 

independent mechanism to ensure ISAF’s compliance with international human 

rights and humanitarian law should be established;

• An amended ISAF mandate (and the mandate of any additional security assistance or peace-keeping troops that may be deployed in the future) should also include specific provisions for

• the protection of women and girls who continue to be at high risk of rape and 

sexual assault by armed groups. 

Criminal justice system

• The international community must provide sufficient technical and financial support to the ATA to enable it to reconstruct the criminal justice system with 

human rights at its core. A functioning criminal justice system that adheres to 

international law and standards involves the effective operation of all interlinking 

sectors, including policing, prisons and courts. Unless all aspects are addressed 

and the appropriate reforms are initiated and carried out, the system will never 

be successful.

• Judicial system: The international community pledged to support judicial reconstruction as a means of facilitating peace and security in Afghanistan. The international community must ensure that it provides long-term financial assistance 

to ensure the re-establishment of the rule of law. In the current financial year, 

there is a $15 million shortfall for rule of law-related projects in Afghanistan. 

Donor governments who have pledged to provide financial assistance must deliver 

these funds as a matter of urgency.

• Women and girls: Measures to protect the rights of women must be built into 

legal and constitutional reform, and integrated into policing and criminal justice 

64

processes. The international community and the Afghan Transitional Administration must act with urgency to protect women from violence.

• Police: The police force must be trained in professional policing skills and human 

rights throughout Afghanistan. Adequate funding must be made available for salaries, equipment and appropriate facilities for police. Oversight and accountability 

mechanisms must be established. The use of torture to extract confessions must 

be stopped immediately.

• Prisons: Resources must be provided to ensure that prisons can be rebuilt to conform to conditions set out in international law and standards. Training must be 

provided to prison staff, and funds must be made available to ensure the regular 

payment of salaries. Ill-treatment, particularly the use of leg irons, must be outlawed.

Thank you for inviting Amnesty International for this important hearing.

Mr. JANKLOW. Thank you very much, sir. 

Mr. Schneider, please make your presentation. And when you are 

done, sir, the Chair is going to go to Mr. Rohrabacher, and then 

the lady from California, and try and get at least their questions 

in before the vote. 

STATEMENT OF MARK SCHNEIDER, SENIOR VICE PRESIDENT, 

INTERNATIONAL CRISIS GROUP 

Mr. SCHNEIDER. Thank you very much, Mr. Chairman, Members 

of the Committee. 

I want to express our appreciation for the opportunity to testify 

on behalf of the International Crisis Group on current conditions 

in Afghanistan, the status of the effort to construct a democratic 

government after 23 years of war. 

I was asked to discuss the broader context in which the constitutional process is taking place. I just want to note that on the eve 

of the constitutional Loya Jirga we continue to believe that the 

major failure of the post conflict effort in Afghanistan was the refusal to support the extension of ISAF, International Security Assistance Force, beyond Kabul, as the United Nations, the government of President Karzai, and many NGOs have pushed from the 

outset. 

I was in Kabul last week. I met with the USAID and State Department officials in a compound that, as you know, is tightly regulated and heavily restricted. The security environment has sharply 

limited the mobility and the number of AID workers, officials and 

contractors and thus has slowed the pace of reconstruction and 

transition. 

We have dedicated soldiers, diplomats, USAID and NGO workers 

there, and they are risking their lives trying to help the Afghan 

build a nation free of al-Qaeda, Taliban and warlords, yet the attacks are becoming more and more frequent. 

Security concern is really the reason why the constitutional Loya 

Jirga in fact was postponed from September when it was initially 

planned to December 10th, and I think that it should be realized 

that even that date is somewhat tenuous since the copies of the 

draft constitution had not reached all provinces a week ago when 

I was there. 

In fact, whether the eight regional elections which are planned 

to elect the delegates to the Loya Jirga can be held without violence is still an open question. 

65

Holding a new presidential elections next June will likely prove 

even more challenging, and the election of a parliament, which is 

crucial as you know to a functioning democracy, may even slip 

until 2005. 

Democracy requires participation, open campaigning without intimidation, and public discussion. They all require a minimum of 

stability and security, and that simply is not there yet in Afghanistan. 

Afghanistan faces three fundamental threats to its security still, 

and to the constitutional process: Taliban and al-Qaeda, the warlords and their armed militias, and a massive renewal of drugs cultivation and trafficking. 

First, with respect to the frequency of Taliban and al-Qaeda attacks on coalition forces, civilians and NGOs, that frequency has 

spiked upwards in the past several months. Whatever the reason, 

the attacks on civilian aid workers rose from approximately one per 

month earlier this year to an average of one every day last month. 

In September, six local aid workers were killed, more than in any 

month since Bonn. As a result of the latest incidents, particularly 

the murder of a young French woman who worked for UNHCR, 

that agency yesterday withdrew all staff from four southeastern 

provinces, essentially closing the regional center at Gardez, where 

I met many of them barely a week ago. 

I think it should be emphasized that those attackers for the most 

part are coming from Pakistan. And while Pakistan law enforcement has pursued al-Qaeda, the military government generally has 

been reported as either complacent or negligent when it comes to 

the Taliban. It is the general consensus—I stopped in Pakistan—

that President Musharaff’s government maintains an insurance 

policy of sorts with the Taliban in the event that the west were to 

abandon Afghanistan as it did a decade ago. 

Clearly, we have tremendous influence on Pakistan, and we really should demand an end to the de facto sanctuary for Taliban 

leaders. Hopefully the recent crackdown on extremist forces will be 

followed by more aggressive moves against the forces on the border. 

Secondly, warlords and regional militias still pose an immediate 

threat. They have generally claimed land resources and property, 

and used their armed militias to maintain those claims. As you 

know, NATO has agreed now finally to extend its support protection outside Kabul, but NATO is far from getting the kind of commitment of troops and equipment from member countries that they 

need to meet their requirements. 

And finally, the entire nation-building effort in Afghanistan, and 

it is nation building, is threatened by the reappearance of the narcotics industry. You should, I think, know that there is nearly $1.2 

billion from drugs going to the farmers, another $1.2 billion to traffickers, equal to about half of Afghanistan’s economy. 

The potential for corruption of the political process is enormous. 

What is even worse, what reminds me more of Colombia than anything else, is that it is the warlords and the mid level militia commanders who are reaping the benefits of the drug industry at this 

point. 

66

Clearly, a fundamental issue is the disarmament and demobilization of those militia, and there needs to be an extension of ISAF 

immediately in order to permit that to be carried out. 

The good news is that the U.S. Government has shifted its policy 

in support of that. However, now there needs to be a diplomatic effort to gain the kinds of troop contributions from its European allies to make that commitment good. 

Finally, with respect to the constitution, we have significant concerns. We issued a report on this a couple of months ago. There 

simply, in terms of procedures, has not been a broad enough or representative enough process for drafting the constitution, or for debating it. 

And the procedures for governing the Loya Jirga in a month remain very opaque, as to how it is going to be conducted. And substantively, as has been mentioned, we have concern with respect to 

human rights——

Mr. JANKLOW. Sir, we are going to have to wrap up. 

Mr. SCHNEIDER [continuing]. Of the rights of women, and the absence of checks and balances, and particularly the potential for conflict and the lack of clarity between the powers of the center and 

provincial local authorities. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Schneider follows:]

PREPARED STATEMENT OF MARK SCHNEIDER, SENIOR VICE PRESIDENT, 

INTERNATIONAL CRISIS GROUP

I want to express my appreciation to the Subcommittees on the Middle East and 

Central Asia and on International Terrorism, Nonproliferation and Human Rights 

for the opportunity to testify on behalf of the International Crisis Group (ICG) on 

current conditions in Afghanistan and the status of the effort to construct a democratic government after 23 years of war. 

ICG has been in Afghanistan since 2001, publishing our first report on ‘‘Priorities 

for Reconstruction and Development’’ a few weeks before the Bonn Conference. 

Since then we have published eight additional reports, including the last two on 

‘‘Peacebuilding in Afghanistan’’ and ‘‘Disarmament and Reintegration’’ over the past 

few weeks, and an earlier report on ‘‘Afghanistan’s Flawed Constitutional Process’’. 

On eve of the Constitutional Loya Jirga, we continue to believe that the major 

failure of the post conflict effort in Afghanistan was the refusal to support the extension of the International Security Assistance Force beyond Kabul—as ICG , the 

UN and the Government of Hamid Karzai pushed for from the outset. The Bush 

Administration did not relent on their opposition to a broader security force until 

this summer, and such a policy has yet to be fully implemented. 

By failing to get security right, the international community has had its hands 

tied in trying to bring about reconstruction, humanitarian relief, disarmament and 

reintegration (DR) and the broader political transition. I met with USAID and State 

Department officials in Kabul last week. They live and work in a tightly restricted 

and heavily guarded compound. Security concerns have limited the number and mobility of aid officials, NGOs, and contractors and slowed Afghanistan’s attempt to 

get back on its feet. 

The Afghan government, the UN and the U.S. and coalition forces all are committed to the Bonn schedule and to building democratic institutions. Dedicated soldiers, diplomats, USAID, UN and non-governmental aid workers are risking their 

lives trying to help Afghans build a nation free of Al Qaeda, Taliban, and renegade 

warlords. The murder of a young UN refugee worker this past weekend in Ghazni, 

a car bomb last week outside the UN office in Kandahar and a rocket attack on the 

UN disarmament event days after I left Gardez are some of the latest examples of 

the terror strategy Taliban and al Qaeda have used to attack the soft target of international civilian agencies and NGOs and derail reconstruction and the political 

transition. 

Nevertheless, much has been accomplished: more than 2 million refugees have returned since 2001 (although several million more still remain outside Afghanistan); 

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the Karzai government has established basic administration and ended flagrant government abuse of human rights (although abuses by warlords still persist); and immunizations have reached some 90% of children, many of whom have the chance 

to go to school for the first time. 

However, a lack of security has made more sweeping progress impossible. It 

forced postponement of the Constitutional Loya Jirga (the traditional national assembly) from September to December 10. Even that date is extremely tenuous since 

the copies of the draft Constitution still had not reached all provinces until a week 

ago. Holding Presidential elections next June will likely prove even more challenging. The election of a Parliament, crucial to establishing a functioning democracy, is likely to slip until 2005. Democracy requires participation, open campaigning without intimidation and public discussion, all of which require a minimum of stability. 

Nearly two years after Bonn, Afghanistan remains beset by three fundamental 

threats to its security and stability. 

—First the Taliban and al Qaeda still are able to strike at coalition forces, Afghan 

civilians, and international aid workers on a daily basis. The frequency of such attacks has spiked upward in recent months. Attacks on aid agencies rose from one 

per month earlier in the year to one every other day. In September, six aid workers 

were killed, more than in any month since Bonn. The NATO/ISAF deputy military 

commander stated that more attacks had occurred in the previous ninety days than 

in the entire prior period since Bonn. The most recent deaths resulted in the 

UNHCR pulling its entire staff from southeastern Afghanistan. 

The US military and its allies brought a speedy end to Taliban and al Qaeda control over the state apparatus in November 2001; but plans for postwar Afghanistan 

stalled as Taliban forces and significant elements of al Qaeda escaped to Pakistan. 

Although Pakistan law enforcement has acted against al Qaeda, the Pakistan military government—whose security service have long and deep ties to the Taliban—

remains passive or negligent when it comes to the Taliban. There is virtual consensus among diplomats, press and others that the Pakistan government of President Pervez Musharraf maintains an ‘‘insurance’’ policy of sorts with the Taliban 

in the event the west were to abandon the country as it did a decade ago, and a 

radical Taliban government were to return to power. 

It is these same religious extremists who govern the Northwest Frontier Province 

and rule, in coalition with the pro-Musharraf central government, in Baluchistan. 

These are the two provinces bordering Afghanistan where the Taliban and al Qaeda 

operate. The former are visible in the key cities of those provinces. With $3 billion 

aid being sought by the Bush Administration for the Musharraf government in 

Pakistan, it is clear that the Administration has enormous leverage to demand that 

Pakistan put an end to de facto sanctuary for Taliban leaders. Hopefully the recent 

roundup of extremist Islamic forces also will be followed by a more aggressive move 

against both Taliban and al Qaeda encampments along the border. 

—Secondly, warlords and regional militia pose an immediate threat. Some originally were financed and allied with US forces in the fight against al Qaeda after 

9/11. A few have appeared willing to identify their futures with a new national Afghan government; but most have claimed land, resources and property and used 

their armed militias to maintain those claims. They also have used those forces to 

intimidate, threaten and pursue their own stake in the process leading up to the 

constitutional Loya Jirga. 

President Karzai only recently has been able to change governors and military 

commanders in Kandahar and to dampen at least temporarily the battles in Mazare-Sharif in northern Afghanistan between local commanders loyal to Abdul Rashid 

Dostum and Muhammad Atta. Dostum, an ethnic Uzbek, is head of the National 

Islamic Movement and was awarded a military adviser role by Karzai. Atta, his regional challenger, is an ethnic Tajik and a commander of the Islamic Society group, 

aligned with the Panjshiris in Karzai’s administration who have their eyes set on 

national power. 

NATO Secretary General Lord George Robertson, in his letter to Kofi Annan of 

October 2, asserted NATO’s willingness to play an expanded role in Afghanistan. 

He noted that one of the crucial tests for an exit strategy for NATO/ISAF would 

be the ‘‘removal or significant modification of the behavior of warlords.’’ Until that 

happens, the path forward will be littered with grave obstacles. 

—Finally, the entire nation-building endeavor in Afghanistan—and make no mistake—it is a nation-building venture, is threatened by the appearance of a hyraheaded narcotics industry. President Karzai should be commended for identifying 

the threat from drugs more than a year ago, but thus far the international response 

has been minimal. 

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A coherent, concerted international strategy for helping the Afghans control narcotics is desperately needed. Although the UK is the titular leader, its alternative 

development program has had severe problems. But without law enforcement, interdiction, eradication and military muscle, even an effective alternative development 

program is unlikely to succeed. Since Europe is the market for most Afghan heroin, 

the US has willingly taken a back seat on the issue. 

The UNODC identified $1.2 billion going to farmers for their poppies and a similar amount going to traffickers, nearly equal to half Afghanistan’s legal economy. 

This means that there is an enormous amount of money available to corrupt the 

political process. More than 3,600 metric tons of opium poppies were produced last 

year, and it is estimated that the yield will rise to 3800 tons in 2004. Drugs also 

threaten efforts to produce a functioning judicial system. 

In a too close approximation to Colombia, it is the warlords and mid-level regional 

commanders in particular who are acquiring the revenues from the narcotics trade. 

That financial windfall inevitably makes them spoilers to counterdrug programs or 

attempts to political stability based on effective law enforcement institutions. 

Despite these three security challenges, only 6,500 new soldiers have graduated 

into the Afghanistan National Army (ANA). Barely 10,000 new police are in uniform. The judicial system remains in the hands of the most conservative sectors of 

society. The disarmament and demobilization process has just begun, and in Konduz 

and Gardez, where some 1,200 soldiers and officers have started a DR process, there 

were Lee Enfields from the l9th century turned in by some as their ‘‘weapons’’ and 

some of the heavy weapons looked like World War I vintage. 

The real tests are whether the military forces of General Fahim and his Northern 

Alliance colleagues in Kabul will be removed and begin to disarm before the Constitutional Loya Jirga, whether DR will be fully completed in the provinces before 

registration and the Presidential and Parliamentary electoral campaigns begin and 

whether NATO/ISAF will be deployed fast enough and have the mandate to guarantee the success of disarmament, demobilization and reintegration. Currently the 

DR process is called ‘‘voluntary.’’ That is largely because there is no one to force 

reluctant warlords to accept involuntary disarmament. It is remarkable that the UN 

has been able to negotiate even the start of disarmament—at times with the careful 

assistance of international military forces, which just happen to be around. 

The good news is that the Administration has shifted its policy to support extending ISAF beyond the Afghan capital and the UN Security Council has authorized 

its expansion. How NATO will implement its new mandate remains undecided. The 

United States appears to believe that simply increasing the number of Provincial 

Reconstruction Teams (PRTs), small combined military and civil affairs units, with 

embedded USAID and State advisors, now working in four areas, will suffice. This 

plan would include other governments, and under US planning some 12 international PRTs could be in place by next year. However, the ICG, CARE and the IRC 

have talked with NATO’s supreme northern European commander as well as the 

field commanders in Afghanistan about this issue. All believe it would be unwise 

to limit the ISAF expansion to simply multiplying the PRTs. 

NATO military commanders believe a much larger force is needed than the one 

there today. They look for a force level between 12–20,000 when fully deployed. It 

would include one PRT in each province, operating under ISAF. At least three battalion-sized quick strike forces also would be located regionally to let local militia 

commanders know that this fighting force will be deployed against them if they continue to force farmers to grow poppies, refuse to disarm and demobilize when told, 

and impede free and fair elections. 

Those forces are required to carry out the scenario Lord Robertson envisioned for 

NATO if it wants to count its ISAF role a success—from dealing with warlords, to 

assisting DR, to helping build the Afghan National Army and the police, to supporting reconstruction. 

NATO sees what needs to be done. The bad news is that the member countries 

have not begun to offer troops or the resources to do the job. If they do not produce 

a robust NATO force to be deployed beyond Kabul quickly, then NATO will fail and 

so too will Afghanistan. 

Lord Robertson said on Nov. 11, ‘‘First, Afghanistan must be a success. If we fail, 

we will find Afghanistan on all our doorsteps. Worse still, NATO’s credibility will 

be shattered, along with that of every NATO government. Who will stand with us 

in the war against terror if we take on a commitment such as this and then fail 

to deliver?′′

ICG believes:

1. A full NATO/ISAF force of 12–20,000 should be deployed as fast as possible.

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2. The disarmament and demobilization of militias in Kabul should take place before the start of the Constitutional Loya Jirga.

3. The Loya Jirga should be delayed if the elections of delegates are distorted 

by local military pressure or if the fullest dissemination of the draft Constitution cannot be assured with sufficient time for public discussion prior to 

the Loya Jirga.

4. There should also be an urgent commitment by all parties to support a coordinated counter-drug strategy, knowing that the real focus has to be on 

stopping next year’s planting. Resources, as a senior US official privately 

said, have to be ten times current levels for alternative income-generation 

strategies.

5. There needs to be an immediate effort to more fully include the Pashtun population into the political transition, with a coherent provincial strategy that 

combines security, governance, and rural development.

6. The new US supplemental funding is crucial to help the Germans to accelerate the training and deployment of national police.

7. The PRTs, wherever possible, should shift the focus of their reconstruction 

efforts to build security and public administration-related infrastructure and 

support training of Afghan security forces. They should be deployed to areas 

of greatest insecurity. This would allow NGOs and civilian agencies to concentrate on health, education, microenterprise and rural development. These 

efforts should be targeted on the Pashtun south and southeast region as 

much as security concerns will allow.

Finally, Mr. Chairman, let me briefly comment about the Constitution draft now 

circulating in Afghanistan and the plans for the Loya Jirga. Without going into detail, we have one major procedural concern and four major substantive concerns. 

Procedurally, there simply has not been a broad representative body to draft the 

Constitution nor a broad participatory process to debate it. Also, the operating procedures for the Constitutional Loya Jirga remain opaque. Substantively, while this 

process always has to be viewed as a decision of the Afghan people, we have the 

following concerns about the draft in terms of the ultimate goal of peace, stability 

and democracy:

• Power is concentrated in the executive with very little clarity as to balance 

of power or mechanisms for accountability.

• the definition of basic human rights, guaranteed under international humanitarian conventions to which Afghanistan is party, are specifically made conditional on subsequent law. In addition, certain freedoms appear to be conditioned on compatibility with an ambiguous statement of Islamic principles. 

And there is no clear statement assuring equal rights for women.

• the overly dominant role of Islamic law, although not absolute, is a concern.

• the current draft provides for a unitary state, in a country where local and 

regional autonomy historically have been supreme, and there is no statement 

as to the authority or powers of the directly elected local, district and provincial councils which are created.

• this Constitution is acknowledged as the product of a provisional and less 

than fully representative government. It would help ease the situation if the 

Constitution’s provisions were to be reviewed by an elected national assembly.

The people of Afghanistan deserve the continued support of the international community in their journey toward democracy as they contend with radical Taliban and 

al Qaeda enemies outside and warlords inside trying to destroy their future.

Mr. JANKLOW. Thank you very much, and I apologize to you two 

gentlemen for having to speed you up. 

The Chair recognizes the gentleman from California. 

Mr. ROHRABACHER. Thank you very much. There has been some 

very important points that have been made. Let me not Ms. Haig’s 

observation that most Afghans are moderate people. I think it is 

important for us to keep that in the back of our minds. 

Ms. HAIG. Yes, sir. 

Mr. ROHRABACHER. And to express that as often as possible because the imagine that most—that the world has of Afghanistan 

and its people is totally different from what those of us who know 

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the Afghan people in a personal way. These are moderate people. 

They have a devout faith in Islam, but they are not fanatics, and 

kooks who want to go out and kill people in the name of their religion. 

The Taliban was an importation from Saudi Arabia, and not a 

native religion of Afghanistan, and so it is important for us to keep 

that in mind. Otherwise, people might have some sort of animosity 

toward the Afghans. 

I personally see the Afghan people as the victims and not the 

perpetrators. Most of the violence that has been occurring in that 

part of the world, and thus deserve our wholehearted help, and not 

the way we would treat people who are monstrous and some kind 

of fanatical people, because that is not them at all. They are very 

good-hearted, loyal people with a sense of honor that I have seen 

among very few people in this world. 

I note some other things. We do hear, as the gentleman just said, 

admonitions about warlords. I think that there is an admonition 

they have about admonitions about warlords. Let us keep in mind 

that the warlords, what some often are called warlords are really 

ethnic leaders who have emerged over the years as just representing their ethnic group who by the nature of reality in Afghanistan have to also be military leaders, and that many of the 

warlords were the people who helped us drive the Taliban and alQaeda out of Afghanistan. 

If we start talking about the warlords as being our enemies and 

include in it the Northern Alliance, what we are doing at a time 

when the Taliban seems to be resurging across the border to the 

south is leaving Afghanistan open to a horrible new round of conflict. 

So let us not weaken people who helped us defeat the Taliban 

until we are sure the Taliban are never coming back. 

Am I wrong in that there seems to be a new alliance that seems 

to be threatening Afghanistan with people like Hekmaktiyar, who 

were not in the Taliban, now in alliance with them, and the drug 

lords who—this is a whole new potential threat; is it not? 

Mr. SCHNEIDER. Without any question. 

Mr. ROHRABACHER. Okay. And so let us not go up and demand 

that all of these folks who helped us, General Dostem and the rest 

of them, who are very imperfect people, let us not be rushing to 

take all the weapons out of the hands of those people when you 

have got this threat to the south, and please feel free to jump in 

on that. 

Mr. SCHNEIDER. I think the issues which you raised earlier, that 

is, that you want to build an Afghan national army and police is 

right. You need a lot more than the 6,500 now trained. If you can 

extend the international security presence, you could begin to disarm and demobilize those individual militias, and that is really 

the——

Mr. ROHRABACHER [continuing]. Assured that the Afghan army 

was—there has been a lot of concern about who Mr. Karzai is and 

how he ended up on top of the heap, all right? And as I say, my 

reading of the situation is is that the royal family was about the 

only people, who people in Afghan trusted who happened to be 

pushed as well. 

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Let me note that the admonitions, Mr. Chairman, about the terrorism being financed by drugs, that is absolutely the case. It has 

been a grievous disservice to the people of Afghanistan to permit 

this drug-based economy to emerge, because that is all the choices 

they had. 

But let us note that the growing areas, and I went to Vienna and 

went to the United Nations to talk to them about that, areas that 

are most profoundly covered with poppies, where you could just see 

it for mile to mile, happened to be in those areas that are the 

southern parts of the country that were most prominently supportive of the Taliban, meaning the Pushtin areas, and let us note 

that. 

So if we are going to prevent the Taliban and al-Qaeda from resurging back into that country, we have got to handle it very delicately in terms of pushing for a centralization of power when the 

decentralized power groups were the ones who helped us beat the 

Taliban. I am happy, just for the record, and then I will give up 

to the Chairman here, that the constitution does state that there 

will be free elections in the provinces for their provincial—their 

provincial whatever we call them, I guess, parliaments or governing bodies. 

Ms. HAIG. Councils. 

Mr. ROHRABACHER. Councils. It is very good that they will have 

free elections to determine that in their local areas, and that will 

in the end help ensure a balance there once we do have a situation 

where the central army and the central government will be the 

major force in the society. 

Thank you very much, Mr. Chairman, for indulging me, and 

thanks again. We have all worked together and keep our eye on the 

basic human rights of the people there, and then if they do that, 

they will succeed as long as their rights, because they are very 

brave and courageous people. Thank you. 

Mr. JANKLOW. Thank you very much, Mr. Rohrabacher, and I 

would like to thank all of you panelists for coming. I apologize for 

the procedures we had, but we have to go forward, and so I am 

going to adjourn these proceedings. 

I would like to state for the record, though, that we are going to 

leave the record open for 5 days to give—not leave the record open, 

but give Members 5 days to submit questions, those Members that 

had to leave, submit questions that they have to any of you panelists if you would be willing to respond to them. 

And thank you very, very much for coming here today. It certainly is appreciate, and it sure contributes to the knowledge base 

that we have to have to try and make some kind of sensible decisions. Thank you. 

[Whereupon, at 4:07 p.m., the Subcommittees adjourned.]

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